SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 61302/00 by Petru BUZESCU
against Romania
The European Court of Human Rights (Second Section), sitting on 18 November 2003 as a Chamber composed of
MrJ.-P. Costa, President,
MrGaukur Jörundsson,
MrL. Loucaides,
MrC. Bîrsan,
MrK. Jungwiert,
MrM. Ugrekhelidze,
MrsA. Mularoni, judges,
and Mrs S. Dolle, Section Registrar,
Having regard to the above application lodged on 25 July 2000 and registered on 28 September 2000,
Having deliberated, decides as follows:
THE FACTS
The applicant is a Romanian and American national, born in 1951 and living in Bucharest. He was represented before the Court by Mr S. Grosz, a lawyer practising in London, United Kingdom. The respondent Government were represented by Mr B. Aurescu, their Agent.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1977 the applicant, a lawyer, joined the Constanţa Bar (Romania). He practised until 1981, when he left for the United States. As a result, the Romanian authorities deprived him of his Romanian citizenship and required him to notify the Constanţa Bar that he had ceased his professional activities. However, the applicant did not do so.
In a decision of 30 October 1981 the Constanţa Bar cancelled the applicant’s membership.
In 1985 the applicant became a member of the New York Bar and practised there as an attorney until 1991.
In August 1990 the applicant applied to the Bucharest Bar to be registered as an attorney there. The Chairman of the Union of Attorneys of Romania (henceforth “the UAR”) sent him the following reply:
“Until a new law concerning lawyers is passed, we can only order the annulment of the Constanţa Bar’s decision to cancel your membership, so that you may resume your membership of that bar, but you will be deemed ineligible to practise until you return to this country. ... Indeed, the current law does not allow you to be a member of two bars, irrespective of the fact that one such bar is in this country and the other is abroad.”
The Chairman of the UAR confirmed his position in the course of subsequent meetings with the applicant in March 1991.
In March 1991, after his Romanian citizenship had been restored, the applicant returned to live in Romania. In April 1991 he applied to the Constanţa Bar for the annulment of the 1981 decision, on the ground that he had never requested the cancellation of his Bar membership. He also applied for reinstatement as an attorney and to be removed from the list of attorneys who were ineligible to practise as he had been a member of another Bar.
On 8 May 1991 the Constanţa Bar annulled the 1981 decision to remove the applicant’s name from the Bar roll but ordered his re-registration on the list of attorneys ineligible to practise, as he was still member of another Bar.
From 1991 onwards the applicant offered investment advice to several multinational corporate clients investing in Romania.
On 19 May 1996 the Constanţa Bar decided to lift the applicant’s ineligible status and to register his name on the list of practising attorneys with effect from 10 May 1996.
From May 1996 until October 1999, given that he had been reinstated by the Constanţa Bar, he paid monthly Bar fees and the UAR fees amounting to 1,983,000 lei.
On 14 May 1996, in accordance with Law no. 51/1995 concerning the Profession of Attorney and the Statutes governing the Profession of Attorney, the applicant submitted an application to the Bucharest Bar for a transfer from the Constanţa Bar. He did not receive any response.
On 27 June 1996 the UAR decided that the applicant’s reinstatement as a lawyer fell within its own field of competence and not that of the Bar. The UAR thus found that the Constanţa Bar had acted ultra vires in taking its decision of 8 May 1991. Furthermore, it declared that the Constanţa Bar’s decision of 10 May 1996 annulling the applicant’s ineligible status was illegal, having regard to the fact that it had been based on the unlawful decision of 1991.
It appears that the UAR’s decision of 27 June 1996 was never notified either to the applicant or to the Constanţa Bar. The decision was only communicated to him on 10 February 1998, when he was involved in other proceedings before the Bucharest Court of Appeal.
On 27 November 1996, having received no response to his application for a transfer, the applicant submitted a renewed application to the Bucharest Bar for leave to be transferred from the Constanţa Bar.
As he did not receive any response, on 18 March 1997 the applicant brought an action before the Bucharest Regional Court, in accordance with Law no. 29/1990 on Administrative Litigation. He asked the court to establish that he had a right to be transferred from the Constanţa Bar to the Bucharest Bar and to compel the latter to allow his transfer application and issue a decision authorising him to practise as an attorney in a private law office.
Following an application by the Bucharest Bar for a change of venue (declinare a competentei), the Bucharest Regional Court referred the case to the Bucharest Court of Appeal.
During the proceedings, and following several hearings, the Bucharest Bar invited the applicant to attend a meeting organised by the Bar Council on 15 May 1997. The applicant was informed at this meeting that the Bucharest Bar was willing to consider his transfer application, provided that he clarified his status with the UAR. He was then told that the UAR had annulled his reinstatement as a member of the Constanţa Bar. The applicant requested that the Bucharest Bar notify him in writing about its position in respect of his transfer application. On 4 June 1997 the Bucharest Bar sent the applicant a letter stating the position which it had expressed orally on 15 May 1997 and informing him of the UAR’s decision of 27 June 1996.
At the suggestion of the Dean of the Bucharest Bar, the applicant requested the UAR on 9 June 1997 “to clarify and resolve” his situation and to advise him of the manner in which his request could be met.
In July 1997 the applicant applied to the Court of Appeal requesting it to invite the UAR to join the proceedings as a defendant. He pointed out that he would be seeking to compel that body to disclose its decision of 27 June 1996. After several hearings, on 10 February 1998 the UAR submitted a copy of its decision of 27 June 1996 to the court.
On 18 February 1998 the applicant filed an application with the UAR requesting the annulment of that decision and confirmation of his status as an attorney and a member of the Constanţa Bar. On 14 March 1998 the UAR issued a decision confirming its decision of 27 June 1996, stating inter alia, that the applicant had “committed fraud as he had practised as an attorney all this time without legal authorisation”. Similar statements were made by the UAR during the proceedings before the Court of Appeal.
On 30 March 1998 the applicant instituted proceedings against the UAR seeking the annulment of the decision of 27 June 1996. That case was joined to the proceedings against the Bucharest Bar.
On 30 June 1998, during a hearing before the Court of Appeal, the applicant alleged that the 1981 decision was unlawful since he had not applied to have his registration as an attorney cancelled and, consequently, the Constanţa Bar had been entitled to adopt its decision of 8 May 1991. He further argued that: following the entry into force of Law no. 51/1995 concerning the Profession of Attorney, the UAR had had no power to annul the Constanţa Bar’s decision of 1991 and that, under Article 5 of Law no. 29/1990, its decision of 27 June 1996 was invalid since it had been delivered after the one-year period prescribed by that provision. Suspecting that the decision of 27 June 1996 had been fabricated at a later date, namely during the proceedings before the Court of Appeal, the applicant also requested that the UAR’s original Register of Decisions be disclosed.
On 7 June 1998 the court acceded to the applicant’s request. However, on 15 September 1998 it reversed its decision of 7 June 1998 and ruled that the UAR did not have to disclose the original register. The court declared that, in the absence of a criminal complaint alleging forgery lodged by the applicant against the UAR, it was satisfied that the decision purportedly given on 27 June 1996 had indeed been given on that date. The court’s new position was due mainly to the production, by the UAR, of two photocopies, one being of an undated excerpt of the minutes of a meeting of 27 June 1996 describing the procedure leading to the impugned decision, and the other being of another page of those minutes with no link to the applicant’s case. Both these pages bore the stamp of the UAR and the signature of its secretary with the mention “certified copy”. It is not clear from these documents how many pages the minutes of the meeting of 27 June 1996 amounted to in all, who signed the minutes or who voted during that meeting.
The applicant formally objected to that ruling, insisting that it was not his intention to prolong the procedure by lodging a criminal complaint and that the register could easily be disclosed, given that the UAR shared the same building as the court. The applicant’s objection was dismissed.
On 6 April 1999 the Bucharest Court of Appeal dismissed the applicant’s application holding that, pursuant to Legislative Decree no. 90/1990, the UAR had been entitled to annul the decisions of local Bars on grounds of illegality.
In a final decision of 28 January 2000 the Supreme Court dismissed an appeal by the applicant. It held that, in 1991, Legislative Decree no. 90/1990 had vested in the Council of the UAR the exclusive authority to determine applications relating to the admission or re‑admission of attorneys to the Bar, and that Law no. 51/1995 should be interpreted as maintaining these prerogatives. On the basis of Article 130 of the Statutes governing the Profession of Attorney, issued by the UAR in 1995, the court rejected the applicant’s submission that Law no. 51/1995 had removed the UAR’s powers under Legislative Decree no. 90/1990 to annul Bar decisions. As to the time within which the UAR had been entitled to annul the applicant’s registration with the Constanţa Bar in 1991, the Supreme Court held that, given the issuing body’s lack of jurisdiction, the annulment could have been decided upon at any time. Finally, the Supreme Court pointed out that the annulment of the applicant’s registration with the Constanţa Bar on the ground of illegality did not remove his right to apply to the competent authority to decide on his application for re‑registration as a member of the Bar.
On 30 May 2001 the applicant applied to the Bucharest Bar for registration as a lawyer registered with a foreign Bar, but to date he has not received any reply.
B. Relevant domestic law
1. Romanian Civil Code
The relevant provisions of this Code read as follows:
Article 1171
“An official act must be adopted in the form required by law, by a public official competent to act in the place where it was adopted.”
Article 1173
“An official act shall be authentic in respect of any person subject to its terms and clauses. The execution of an official act ... shall be suspended where a criminal complaint is lodged against its author. Where such a complaint alleging forgery is made in the course of civil proceedings, the courts may, depending upon the circumstances, provisionally suspend the execution of the act.”
2. Law no. 29/1990 on Administrative Litigation
The relevant provisions of this law read as follows:
Article 11
“...If a claim is allowed, the court shall also rule on the damages claimed.”
Article 12
“Where the claimant has applied for the annulment of the administrative act without claiming damages at the same time, as the amount of the damages sustained was not known at the time of the examination of the application for annulment, the time allowed for submitting a claim for damages shall run from the date on which he becomes aware of or should have become aware of the damage sustained.”
3. Legislative Decree No. 90/1990 concerning certain measures with regard to the organisation and practice of the profession of attorney
Article 5 § 3 of the Legislative Decree provides:
“The Council of the UAR ... shall have the following powers...
(d) to review decisions taken by the standing committee of the UAR or by the Bar Council and, if it establishes that these decisions are illegal, to annul them;...
(j) to rule on applications for admission or re-admission to the Bar and for transfer and secondment of attorneys from one Bar to another; ...”
4. Law no. 51/1995 concerning the organisation and exercise of the profession of attorney
On 9 June 1995 Law no. 51/1995, repealing Legislative Decree no. 90/1990, entered into force. Its relevant provisions read as follows:
Article 20
“The Bar shall be required to draw up an annual roll of qualified and trainee attorneys, in alphabetical order, mentioning their first and last names, academic qualifications and date of admission to the Bar, the place where they practise, their professional capacity and the courts in which they are entitled to plead ...
The Bar shall transmit the annual list and the modifications thereto to the courts, the investigating authorities, the regional administrative authorities and the Union of Attorneys of Romania.”
Article 48 § 2
“The Bar Council shall have the following powers: ...
(c) to prepare, amend and publish the annual roll of attorneys. It shall transmit this list, with any changes that are necessary, to all interested bodies; ...
(h) to acknowledge applications for transfer or secondment within the Bar;
(i) to monitor compliance with the conditions set out in this Law and the Statutes as regards the manner of exercise of the profession, and to organise and keep details of such reviews... ;”
Article 58
“The Council of the UAR shall meet on a quarterly basis and ... shall have the following powers: ...
(g) to approve admission to the Bar in accordance with the law; ...
(i) to rule on complaints against decisions by the Bar Council concerning the refusal of transfer or secondment requests.”
On 6 March 2001 Law no. 51/1995 was amended, granting the following powers to the Council of the UAR in a new Article 63 (i):
“The Council of the UAR shall have the following powers: ...
(i) to annul decisions by the Bar on grounds of illegality.”
5. Statutes governing the Profession of Attorney, adopted by the UAR and published in the Official Gazette no. 237 of 17 October 1995
Article 130 of these Statutes provides:
“Decisions adopted by the General Assembly or by the Bar Council may be annulled by the Council of the UAR solely on grounds of illegality or a breach of the provisions of the Statutes, provided that the Bar’s autonomy is respected.
Decisions by the Dean of the Bar may be contested before the Bar Council.”
COMPLAINTS
1. The applicant alleged a breach of Article 6 § 1 of the Convention on the following grounds.
(a) The length of the proceedings, which had started on 27 June 1996 when the UAR had adopted its decision, and had ended on 28 January 2000 when the Supreme Court had dismissed his appeal, had been unreasonable.
(b) The UAR’s decision of 27 June 1996 had been given without a hearing and had not been communicated to the applicant until 10 February 1998. The decision of 14 March 1998 confirming the decision of 27 June 1996 had cast doubt on his professional integrity and he had had no opportunity to make representations on the matter. The shortcomings in the proceedings before the UAR had not been remedied by the subsequent court proceedings.
(c) The domestic courts had failed to examine the applicant’s application for reinstatement as a member of the Bar, since his dismissal in 1981 had been an abuse committed under the Communist regime. They had failed to examine that the UAR itself had omitted to take a decision on registering the applicant and had failed to notify him of its decision of 27 June 1996 until constrained to do so in February 1998. The courts had also failed, without any explanation, to deal with the applicant’s main argument, namely that the decision of 1991 reinstating the applicant as a member of the Bar had already produced its effects in the administrative and civil fields and its annulment five years later, in 1996, had therefore been time-barred.
(d) The courts had refused to order the disclosure of the UAR’s original Register of Decisions, such a measure being decisive for the applicant’s case since he suspected that the UAR’s decision purportedly given on 27 June 1996 had in fact been fabricated.
2. The applicant complained that the UAR’s annulment on 27 June 1996 of his registration as a member of the Constanţa Bar had entailed significant financial losses for him. He alleged that the UAR’s decision had amounted to a control of the use of his possessions and had been incompatible with Article 1 of Protocol No. 1 to the Convention.
THE LAW
1. The applicant complained that the UAR’s decision of 27 June 1996, annulling his registration with the Constanţa Bar, and the subsequent administrative proceedings in which that decision was upheld, had violated Article 6 § 1 of the Convention as regards the right to a fair hearing and the length of the proceedings. He complained that his case had not been examined fairly or within a reasonable time, as the UAR’s decision had been adopted without any hearing and had not been notified to him and, in the subsequent proceedings, the courts had failed to deal with his main arguments or order disclosure of the UAR’s original Register of Decisions.
Article 6 § 1 of the Convention, in so far as relevant, provides:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by [a] ... tribunal ...”
A. The Government’s preliminary objection concerning non‑exhaustion of domestic remedies
The respondent Government submitted that the applicant had complained before the courts only about the UAR’s decision of 27 June 1996 and that the UAR’s decision of 14 March 1998 upholding the first decision had not been submitted to the scrutiny of a judge.
The applicant submitted in reply that there were no new elements in the 1998 decision which merited a fresh challenge and that, given the mere confirmation of the UAR’s decision of 27 June 1996 by the decision of 1998, such a challenge would have been fruitless and ineffective, for the purposes of Article 35 § 1 of the Convention.
The Court notes that the UAR’s decision of 14 March 1998 was given in reply to the applicant’s application of 18 February 1998 for the annulment of the UAR’s decision of 27 June 1996, and it was therefore part of the procedure for challenging an administrative act, as required by Law no. 29/1990 on Administrative Litigation. It further notes that the applicant challenged the aforementioned decision before the Bucharest Regional Court and before the Supreme Court. Therefore, the Government’s objection should be dismissed.
B. The Government’s preliminary objection concerning the applicability of Article 6 § 1 of the Convention
The respondent Government alleged that the UAR’s decision of 27 June 1996 had not amounted to the determination of a dispute concerning a civil right. They submitted that there had been no dispute at the time of the UAR’s decision of 1996, as no one had been summoned to appear, no hearing had been held and there had been no parties with opposing interests, the dispute not having arisen until 1998, when that decision had been notified to the applicant, who had thus become aware of it and challenged it in the courts. The Government alleged that the UAR’s decision of 27 June 1996 had not produced any effect until it had been notified to the applicant, and that his right to practise had only been indirectly affected by the annulment of the Constanţa Bar’s decisions. In their submission, the starting point for the application of Article 6 § 1 was the moment when the applicant initiated judicial proceedings against the UAR’s decision of 1996, that is on 30 March 1998.
The applicant submitted in reply, as regards the existence of a dispute, that the Government’s submissions amounted to using the breach of the Convention as a defence. Following the applicant’s request for a transfer to the Bucharest Bar, it appeared that that Bar had referred to the UAR the question of the legality of the applicant’s membership of the Constanţa Bar. Consequently, there was a dispute as to the validity of the applicant’s registration as a member of the Bar and the absence of any summons or oral hearings had been due to the fact that neither the UAR nor the Bucharest Bar had informed the applicant about that dispute. As to the allegation that the UAR’s decision of 27 June 1996 had produced no effects, the applicant maintained that on 4 June 1997 the Bucharest Bar had dismissed his application for a transfer and that, in its decision of 14 March 1998, the UAR had accused him of having practised illegally throughout that period. Thus, the UAR’s decision of 27 June 1996 had denied him the right to a transfer and the right to practise as an attorney.
The Court reiterates that conformity with the spirit of the Convention requires that the word “dispute” should not be construed too technically and that it should be given a substantive rather than a formal meaning (see Le Compte, Van Leuven and De Meyere v. Belgium, judgment of 23 June 1986, Series A no. 43, p. 20, § 45). It further notes that proceedings in which the right to continue to exercise a profession is at stake give rise to a “dispute” over civil rights, within the meaning of Article 6 § 1, whether these proceedings are disciplinary (see Philis v. Greece (no. 2), judgment of 27 June 1997, Reports of Judgments and Decisions 1997-IV, p. 1085, § 45, and Malek v. Austria, no. 60553/00, § 39, 12 June 2003) or non-disciplinary (see Van Marle and Others v. The Netherlands, judgment of 26 June 1986, Series A no. 101, pp. 11-12, § 35). Furthermore, when a “dispute” over a decision taken against an applicant concerns a “civil right”, he is entitled to have his case heard by a “tribunal” satisfying the conditions laid down in Article 6 § 1 (see Albert and Le Compte v. Belgium, judgment of 10 February 1983, Series A no. 58, p. 16, § 29).
In the instant case, the Court notes that both parties agreed that the applicant’s right to practise as a lawyer was a “civil right” within the meaning of Article 6 § 1 of the Convention (see De Moor v. Belgium, judgment of 23 June 1994, Series A no. 292-A, p. 16, § 47, with reference to H. v. Belgium, judgment of 30 November 1987, Series A no. 127-B, pp. 32-34, §§ 44-48). The Court observes that, in its decision of 27 June 1996, the Council of the UAR raised of its own motion the issue of the validity of the applicant’s registration with the Constanţa Bar, following the applicant’s request for a transfer to the Bucharest Bar, without informing the applicant or the Constanţa Bar. It follows that the applicant’s right to continue to practise as a lawyer was at stake in the UAR’s decision of 27 June 1996, giving rise to a “dispute” over his civil rights. The fact that the applicant was not notified of this decision deprived him of the possibility of immediately challenging it, pursuant to Law no. 29/1990 on Administrative Litigation. As regards the effects of that decision on the applicant’s right to practise as a lawyer, the Court observes that the UAR’s decision of 27 June 1996 meant that the applicant was denied the right to a transfer and risked being sanctioned for practising illegally.
Accordingly, as the applicant was entitled to have his “dispute” settled by a “tribunal” satisfying the conditions laid down in Article 6 § 1 of the Convention, this Article is applicable under its civil head to the proceedings viewed as a whole, and the Government’s objection should be dismissed.
C. The merits
1. The length of the proceedings
The Government submitted that the period to be considered under this complaint had started on 30 March 1998, when the applicant had challenged before the courts the UAR’s decision of 27 June 1996, and had ended on 28 January 2000, when the Supreme Court had given its final decision, and that such a period could not be regarded as excessive under the Convention.
The applicant complained about the failure of the UAR to notify him of the decision of 27 June 1996 until 10 February 1998, and submitted that the period to be considered had started on 27 June 1996 and ended on 28 January 2000, when the Supreme Court had given its final decision.
The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and having regard to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the conduct of the applicant and of the relevant authorities, and the importance of what is at stake for the applicant in the litigation (see, among other authorities, Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 19, ECHR 2000-IV, and Horvat v. Croatia, no. 51585/99, § 52, ECHR 2001-VIII).
The Court considers that in the instant case the administrative proceedings under consideration started on 27 June 1996 with the UAR’s decision to cancel the applicant’s registration with the Constanţa Bar, and ended on 28 January 2000 with the final decision of the Supreme Court, so that they lasted three years and seven months. It notes that the domestic courts dealt with two joined files, one concerning the applicant’s transfer to the Bucharest Bar, the other concerning the UAR’s decision of 27 June 1996, and that no particular delay was noticed. The Court concludes that, given their overall duration of three years and seven months before one professional administrative body and two subsequent degrees of jurisdiction, the length of the proceedings was not excessive.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. The fairness of the proceedings
The Government submitted that the prior intervention of professional bodies was consistent with the requirements of Article 6 § 1 of the Convention as long as the applicant subsequently had access to a court offering all the guarantees of a fair hearing. Conceding that the procedure leading to the adoption of the UAR’s decision of 27 June 1996 had not complied with the requirements of Article 6 § 1, the Government contended that these deficiencies had subsequently been corrected by the courts.
Concerning the allegation that the courts had failed to decide on some points in the case, the Government noted that the courts had in fact ruled on all its aspects. They further submitted that, with the exception of the annulment of the UAR’s decision of 27 June 1996 and the approval of the applicant’s request for a transfer to the Bucharest Bar, the other issues raised by the applicant were mere arguments on which the courts were not obliged to rule extensively (see Van de Hurk v. The Netherlands, judgment of 9 April 1994, Series A no. 288, p. 20, § 61).
Concerning the refusal of the Court of Appeal to order the disclosure of the UAR’s original Register of Decisions, the Government pointed to the courts’ margin of appreciation on the admissibility of evidence, and noted that the Court of Appeal had reversed its decision on disclosure after the UAR had produced the verbatim record of the minutes of the meeting of 27 June 1996. The Court of Appeal had informed the applicant that he could contest the authenticity of the UAR’s decision by lodging a criminal complaint alleging forgery.
The applicant submitted in reply that the shortcomings of the procedure for the adoption of the UAR’s decision of 27 June 1996 had not been remedied by the subsequent court proceedings. Concerning the failure of the courts to decide on certain aspects of the case, the applicant maintained that the courts had not ruled on its substantive merits, notwithstanding the fact that he had constantly set out his arguments. The applicant had asked the UAR and, subsequently, the courts to rule not only on the annulment of the UAR decision, but also on his reinstatement as a member of the Bar, on the failure of the UAR to notify him of its decision before February 1998, and on the applicability to his case of Law no. 29/1990.
As regards the refusal of the Court of Appeal to order the disclosure of the UAR’s original Register of Decisions, the applicant further contended that the court could have ordered the production of the original register in the administrative proceedings, instead of proposing the alternative of criminal proceedings for forgery, which would have delayed the determination of his administrative complaints. The applicant stressed that, the court had reversed its previous discovery order after the UAR had produced a few loose-leaf photocopies of the minutes of the decision of 27 June 1996. The applicant submitted that these photocopies, carrying an illegible signature, had reinforced his doubts as to the authenticity of the UAR’s decision of 27 June 1996. He relied in that connection on the Court’s case-law (see Timurtaş v. Turkey, no. 23531/94, § 66, ECHR 2000 ‑ VI).
The Court considers, in the light of the parties’ submissions, that this complaint raises serious issues of fact and law under the Convention, the determination of which depends on an examination of the merits. The Court therefore concludes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
2. The applicant complained that the UAR’s decision of 27 June 1996, confirmed by the subsequent administrative proceedings, represented an interference with his right to the peaceful enjoyment of his possessions that amounted to a control of the use of property incompatible with the requirements of Article 1 of Protocol No. 1 to the Convention, which reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
A. The Government’s preliminary objection concerning non‑exhaustion of domestic remedies
The Government alleged that the applicant had not submitted his pecuniary claim resulting from the UAR’s decision of 27 June 1996 to the scrutiny of the domestic courts, although Articles 1 and 11-13 of Law no. 29/1990 on Administrative Litigation expressly permitted such a claim.
The applicant submitted in reply that, in order to award monetary compensation under Law no. 29/1990, a court first had to establish that the act in question was illegal. He underlined that the Supreme Court had dismissed his application insofar as it had sought to establish that the UAR’s decision of 27 June 1996 had been unlawful. Had the Supreme Court or the Court of Appeal found for the applicant, he would have had a legal basis for a compensation claim.
The Court reiterates that normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see, among other authorities, Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, p. 1210, § 66).
Concerning the instant case, the Court observes that Article 11(2) of Law no. 29/1990 on Administrative Litigation provides that the domestic court should rule on a claim for damages only where an application for annulment has been allowed, and that Article 12 of the same Law provides that a claim for damages may be lodged later than an application for the annulment of an administrative measure. Given the dismissal of his application for the annulment of the UAR’s decision of 27 June 1996, the applicant lacked a legal basis for claiming damages before the domestic courts. As such a claim for damages would therefore have been ineffective for the purposes of Article 35 § 1 of the Convention, the Court dismisses the Government’s objection as to non-exhaustion of domestic remedies.
B. The merits
The Government considered that, as far as the right to property was concerned, they could not be held liable under Article 1 of Protocol No. 1 for the negative consequences of a dispute between two private parties. They concluded that decisions by professional bodies, freely elected by lawyers in accordance with their profession’s internal rules, could not engage the State’s liability.
The Government submitted that before the administrative proceedings concerning the UAR’s decision of 27 June 1996, the applicant had not possessed goodwill, an office as a practising lawyer or any other economic interest justifying protection under Article 1 of Protocol No. 1. They relied on the applicant’s evidence before the Court of Appeal and argued that his case was different from Van Marle and Others v. The Netherlands and H. v. Belgium cases, as he had not practised as an attorney for a sufficiently long period to be able to claim protection under Article 1 of Protocol No. 1.
The Government reiterated the criteria set out by the Court for a measure to be qualified as a State interference with the use of property, and stressed the State’s considerable margin of appreciation. Concerning the legality of the UAR’s decision of 27 June 1996, they submitted that the task of interpreting and applying domestic law lay primarily with the national courts, although the Court could intervene in cases of manifest abuse, a description which did not apply to the applicant’s case. As for the legitimate aim of the measure, the Government asserted that the UAR’s decision had been designed to promote the general interest, having been intended to ensure that all the decisions concerning admission to and exclusion from the legal profession were made by the same, competent body under the relevant legislation.
As to the need to maintain a fair balance, the Government relied on the case-law of the Court, in particular on the Pine Valley Developments Ltd. v. Ireland judgment of 29 November 1991 (Series A no. 222, § 59), in which the Court had held that where the property right of a claimant was based on illegal measures, decisions by the national authorities putting an end to the illegal use of property did not call for compensation. They concluded that the UAR’s decision of 27 June 1996 had not been disproportionate in any respect, since it had been the only way to remedy the illegality of the Constanţa Bar’s decision to register the applicant.
The applicant submitted that a State could not absolve itself from its obligations under the Convention by delegating those obligations to private bodies or individuals (see, for example, Costello-Roberts v. United Kingdom, judgment of 25 March 1994, Series A no. 247-C, p. 58, § 27). According to the applicant, the UAR was an independent regulatory body constituted by statute (currently Article 63 of Law no. 51/1995) and had the task under that statute of regulating the Romanian Bar. It was a public-law body, subject to the jurisdiction of administrative courts by virtue of Law no. 29/1990; its acts were ranked as official acts within the meaning of Article 1171 of the Civil Code and it had been designated by the Supreme Court of Justice (judgment No. 450 of 12 March 1997) as “an administrative authority ... with a structure and competence provided for by law”. The applicant concluded that the Government’s responsibility was therefore engaged in relation to the UAR’s decisions of which he complained.
The applicant maintained that he had a “possession” within the meaning of Article 1 of Protocol No. 1. Thus, since 1991 he had set himself up as a consultant and member of the New York Bar offering investment advice to a number of multinational corporate clients who were investing in Romania. He had been registered with the Constanţa Bar, but his practice had been in Bucharest, where he had established a number of contacts with foreign investors, his entry in the Martindale-Hubbel Law Directory, which listed some of his clients, offering proof in that regard. The applicant submitted that the UAR itself had alleged, in its decision of 14 March 1998, that he had committed fraud as he had practised the profession of attorney all that time without lawful authorisation.
The applicant further contested the Government’s observations. He considered the UAR’s decision of 27 June 1996 illegal, submitting that the UAR was no longer competent, according to the provisions of Law no. 51/1995 at that time, to annul his registration with the Constanţa Bar in 1991; that the Statutes governing the Profession of Attorney adopted by the UAR, on which the domestic courts had based their decisions, could not be relied on in addition to the law; and that the annulment of his registration had become time-barred by 1996.
The applicant considered that the UAR could not have pursued the alleged legitimate aim, taking into account the fact that the decision of 27 June 1996 had been adopted five years after the UAR had had the opportunity to raise the nullity of his registration when the Constanţa Bar had presented its regular reports; that the decision had been adopted in private and that it had not been communicated to him until February 1998. The applicant further disputed that a fair balance had been struck in his case. He submitted that on 9 June 1997 he had asked the UAR, which purported to be the competent body for approving his registration as an attorney, to clarify and resolve his situation, but he had not received any answer to that request. The same had occurred when he had applied on 30 May 2001 for registration with the Bucharest Bar as a lawyer registered with a foreign Bar. The applicant concluded that the UAR could have maintained a fair balance by notifying him of its decision of 27 June 1996 in due time or by registering him as an attorney, in order to remedy the alleged illegality of his registration with the Constanţa Bar.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination on the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant’s complaints under Article 6 § 1 of the Convention concerning the fairness of the proceedings, as well as his complaints under Article 1 of Protocol No. 1 to the Convention concerning his property rights;
Declares inadmissible the remainder of the application.
S. DOLLÉJ.-P. COSTA
RegistrarPresident
Full & Egal Universal Law Academy