Jankauskas v. Lithuania (no. 2)

Information Note on the Court’s case-law 208

June 2017

Jankauskas v. Lithuania (no. 2) - 50446/09

Judgment 27.6.2017 [Section IV]

Article 8

Article 8-1

Respect for private life

Removal of name of former police investigator with criminal conviction from list of trainee advocates: no violation

Facts – In October 2000 the applicant, a police investigator, was found guilty of abuse of office for having solicited and obtained bribes in exchange for the discontinuation of criminal proceedings. He was sentenced to a period of imprisonment and prohibited from working in law enforcement or the justice system for five years. In 2007, following his release from prison, the applicant wrote to the Lithuanian Bar Association, requesting to be admitted as a trainee advocate. His application was accepted. The Bar Association subsequently became aware of his previous conviction which he had failed to mention in his application. In domestic proceedings the applicant was found to have breached the Code of Professional Ethics for Advocates and was removed from the list of trainee advocates as a disciplinary measure. The applicant’s appeals against that measure were dismissed.

Before the European Court the applicant complained about the decision to strike his name off the list arguing that it had violated his right to respect for his private life under Article 8.

Law – Article 8

(a) Applicability – The notion of private life did not in principle exclude activities of a professional or business nature. Restrictions on registration as a member of certain professions, which could to a certain degree affect an applicant’s ability to develop relationships within the outside world would undoubtedly fall within the sphere of his or her private life.

The applicant had a degree in law and from 1991 up to his conviction had worked as a police investigator. After his conviction had been expunged, he practised law as an in-house lawyer in the private sector and also worked as a trainee advocate for ten months. Taking into account the applicant’s education and his prior professional experience the Lithuanian authorities’ decision to remove him from the list of trainee advocates affected his ability to pursue his professional activity and there were consequential effects on the enjoyment of his right to respect for his private life within the meaning of Article 8.

(b) Merits – The applicant’s dismissal as a trainee advocate constituted an interference with his right to respect for his private life. The interference had been prescribed by law and pursued a legitimate aim, namely that of the protection of the rights of others. As to whether the interference was necessary in a democratic society, the Court underlined the important role played by lawyers in the administration of justice. For members of the public to have confidence in the administration of justice they had to have confidence in the ability of the legal profession to provide effective representation. That special role of lawyers, as independent professionals, in the administration of justice entailed a number of duties and restrictions, particularly with regard to their professional conduct, which had to be discreet, honest and dignified.

Any criminal proceedings entailed certain consequences for the private life of an individual who had committed a crime. Those consequences were compatible with Article 8 of the Convention provided that they did not exceed the normal and inevitable consequences of such a situation.

The domestic courts had found that the applicant was not of high moral character based on consistent domestic case-law, which emphasised the high standards applicable to the profession of advocate. They underlined that the applicant had committed his crimes while working in law enforcement. Having found the applicant guilty, the domestic courts also prohibited him from working in law enforcement and the justice system for five years. Given the nature of the crimes committed by the applicant, it was not unreasonable for the domestic courts to have found that it was inappropriate to regard the applicant as being person of high moral character so as to qualify to work in the justice system. The principles applicable to an advocate’s profession contained values such as the dignity and honour of the legal profession, the integrity and good standing of the individual advocate, respect towards professional colleagues and respect for the fair administration of justice.

In addition, the applicant’s prior conviction and the nature and scope of his crimes were only one of the grounds for holding that he lacked high moral character. The domestic authorities had also noted that a person who wished to become an advocate had an obligation to cooperate honestly and fully with the Bar Association and to disclose all relevant information, which the applicant had failed to do. It was not unreasonable that the domestic authorities should have concluded that such an obligation flowed from notions of honesty and ethics and the idea that the relationship between an advocate and the Bar Association had to be based on mutual respect and goodwill assistance. The applicant should have understood the significance of such information for his application and the need to provide it.

The domestic courts had carried out a careful analysis and had sought to strike a balance between the protection of the applicant’s private life and the need to protect the rights of others and the justice system as a whole.

Conclusion: no violation (unanimously).

(See Bigaeva v. Greece, 26713/05, 28 May 2009, Information Note 119; Morice v. France [GC], 29369/10, 23 April 2015, Information Note 184; and Lekavičienė v. Lithuania, 48427/09, 27 June 2017)

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This summary by the Registry does not bind the Court.

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