Information Note on the Court’s case-law No. 75
May 2005
Buzescu v. Romania - 61302/00
Judgment 24.5.2005 [Section II]
Article 1 of Protocol No. 1
Article 1 para. 1 of Protocol No. 1
Peaceful enjoyment of possessions
Annulment of the readmission of a lawyer to a Bar association which led to a loss of a part of his clientele: violation
Article 6
Civil proceedings
Article 6-1
Fair hearing
Deficiencies in administrative and judicial proceedings concerning the annulment of the readmission of a lawyer to a Bar association: violation
Facts: The applicant, who practised as a lawyer, adhered to the Constanţa Bar in the late 1970’s. When he left for the United States his membership to that Bar association was cancelled. Upon the applicant’s return to Romania, he applied to be reinstated as a lawyer. In 1991, the Constanţa Bar re-registered him on the list of lawyers ineligible to practice, as he was still a member of another Bar. In 1996, the Constanţa Bar decided to fully re-instate the applicant and to register him on the list of practising lawyers. However, on 27 June 1996 the Romanian Union of Lawyers (UAR) considered that a reinstatement of a lawyer fell within its own field of competence, and that the Constanţa Bar had acted ultra vires in taking its decision of 1991. It appears that this decision was never notified to the applicant or to the Constanţa Bar. In the meantime, the applicant had submitted an application for a transfer to the Bucharest Bar, to which he never received a response. The applicant applied to the UAR to clarify and resolve his situation, and subsequently to the Court of Appeal seeking an annulment of the June 1996 UAR decision. As the applicant suspected that this decision had been fabricated at a later date, namely during the proceedings before the Court of Appeal, the applicant also requested the UAR’s original Register of Decisions to be disclosed. The Court of Appeal dismissed the application, holding that the Constanţa Bar had acted ultra vires in taking its decision of 1991. This decision was upheld by the Supreme Court of Justice, finding that the UAR was the exclusive authority to determine applications relating to the admission or readmission of lawyers to Bars. Moreover, it considered that the annulment of the applicant’s registration with the Constanţa Bar 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.
Law: Article 6 § 1 (fair hearing) – The parties agreed 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. Whilst the contentious decision had subsequently been submitted to the domestic courts for a full judicial review, the Court considered that these had failed to determine a part of the subject matter of the case. In particular, the courts had not answered the applicant’s main arguments, namely that he had acted in good faith when he had lodged an application for re-admission to the Constanţa Bar in 1991, and that in any case he could not be blamed for the Bar’s failure to submit his application to the UAR or for the UAR’s failure to review the validity of the Bar’s decision. As regards the applicant’s suspicion of forgery and his ensuing request for the disclosure of the UAR’s original Register of Decisions, the Court found that there were considerable doubts as to the manner in which the Court of Appeal had initially acceded to the applicant’s request and subsequently reversed its decision. Requesting the applicant to file a criminal complaint alleging forgery would have imposed a disproportionate burden on him. Thus, taking into account the proceedings as a whole, the Court concluded that the requirements of fairness had not been met.
Conclusion: violation (unanimously).
Article 1 of Protocol No. 1 – Responsibility of the respondent State:Although the Government argued that the State could not be held liable for the negative consequences of a decision taken by a professional body, the Court found to the contrary. The UAR was a legally constituted body, invested with administrative as well as rule-making prerogatives and which pursued an aim of general interest in relation to the legal profession. Hence, the State’s responsibility had been engaged as a result of the administrative decisions of the UAR of which the applicant complained.
Applicability: The applicability of Article 1 of Protocol No. 1 can extend to law practices and their goodwill, as these are entities of a certain worth that have in many respects the nature of private rights and thus constitute assets. Bearing in mind that in order for the applicant to “exploit” his existing clientele he had to provide them with the full range of services of a Romanian lawyer, including their representation in court, the Court concluded that the applicant could claim to have a “possession” within the meaning of this provision at the time of the UAR’s decision of June 1996, namely as regards the goodwill he had built up in Romania between 1991 and 1996.
Compliance: Given the annulment of the applicant’s registration with the Constanţa Bar had led to a loss of that part of his clientele which was interested in his ability to provide the full range of services of a Romanian lawyer, and hence to a loss of income, there had been an interference with his right to the peaceful enjoyment of his possessions. Even assuming that the UAR’s decision had not been incompatible with the principle of lawfulness, the Court found an element of uncertainty and imprecision in the domestic law and rules which empowered the UAR to annul Bar decisions. The interference had pursued an aim in the general interest, namely the review for re(admissions) to Bars by the UAR. However, as to the proportionality of the interference, given the UAR’s legal obligation to review admissions to Bars, which it did not do in the applicant’s case until 1996, the interference complained of was serious, depriving the applicant, five years after his readmission to the Constanţa Bar, of his right to practise as a lawyer. Thereafter the authorities had failed to clarify the applicant’s situation or advise him on how his request could be resolved. Thus, the annulment of the applicant’s registration with the Constanţa Bar did not represent a proportionate measure.
Conclusion: violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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