European Court of Human Rights

 

 

FOURTH SECTION

CASE OF BORGOVAN v. ROMANIA

(Application no. 23553/15)

 

 

 

 

JUDGMENT

STRASBOURG

30 November 2021

 

This judgment is final but it may be subject to editorial revision.

In the case of Borgovan v. Romania,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

          Gabriele Kucsko-Stadlmayer, President,
          Iulia Antoanella Motoc,
          Pere Pastor Vilanova, judges,
and Ilse Freiwirth, Deputy Section Registrar,

Having regard to:

the application (no. 23553/15) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Romanian national, Mr Lucian Borgovan (“the applicant”), on 6 May 2015;

the decision to give notice to the Romanian Government (“the Government”) of the complaints concerning Article 6 of the Convention, namely the alleged unfairness of civil proceedings, and in particular a breach of the principle of legal certainty, and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 9 November 2021,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The application, which was lodged on 6 May 2015, concerns civil proceedings brought by the applicant against the Suceava Bar Association’s decision not to grant him admission to the legal profession. Relying on Article 6 § 1 of the Convention, he complained that the proceedings had been unfair and that similar proceedings concerning access to the legal profession had generated divergent domestic case-law, thus breaching the principle of legal certainty.

THE FACTS

2.  The applicant was born in 1971 and lives in Bistriţa.

3.  The Government were represented by their Agent, most recently Ms O.F. Ezer, of the Ministry of Foreign Affairs.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

5.  On 28 June 2010 the applicant, who was working as legal counsel (consilier juridic) at the time, requested the Suceava Bar Association to register him as a lawyer without having to sit an exam, as was allowed at that time under Article 16 § 2 (b) of the Legal Profession Act (see paragraph 13 below).

6.  On 17 February 2011 the Suceava Bar Association invited the applicant, together with twelve other candidates, to sit a written test comprising multiple-choice questions aimed at evaluating their knowledge of the Legal Profession Act, the Statute of the Legal Profession and the Lawyers’ Code of Conduct.

7.  After the written evaluation, the applicant’s request to be admitted to the legal profession without an exam was dismissed by the council of the Suceava Bar Association in a decision of 24 February 2011, the relevant part of which reads as follows:

“... the candidate did not demonstrate that he had acquired sufficient knowledge concerning the laws on the legal profession, knowledge of which had been tested in writing, in the form of a multiple-choice questionnaire.”

8.  On 8 July 2011 the council of the National Bar Association, in response to an objection lodged by the applicant, upheld that decision.

9.  On 11 January 2012 the applicant lodged an action against the above‑mentioned decisions with the Bucharest County Court, seeking to compel the Suceava Bar Association to register him as a lawyer without making him sit an exam. On 6 March 2012 he supplemented his initial action with an objection against the provisions of the Statute of the Legal Profession and Guidelines of the council of the National Bar Association concerning the implementation of Article 16 § 2 of the Legal Profession Act (see paragraphs 13 and 15 below).

10.  On 27 November 2012 the County Court forwarded the objection to the Bucharest Court of Appeal which had jurisdiction to examine it. On 13 June 2013 the Court of Appeal allowed the objection. The National Bar Association appealed, and in a final decision of 14 November 2013, the High Court of Cassation and Justice (“the High Court”) dismissed the objection and found that the provisions in question were lawful as they did not add any additional criteria to the law.

11.  The applicant’s action, initially allowed by the County Court on 20 February 2014, was eventually dismissed in a final decision of 4 September 2014 by the Court of Appeal, on the grounds that a certain evaluation of professional competence was acceptable and did not breach the legal provisions in question. The court observed that those provisions, which had been declared lawful by the High Court, did not prohibit the testing of a candidate’s knowledge of the organisation and practice of the legal profession.

12.  The operative part of the final decision was delivered in a public hearing on 4 September 2014. The decision was issued on 24 November 2014 and, in accordance with the applicable law, was served on the applicant on 5 January 2015.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

I.        DOMESTIC LEGISLATION ON THE ORGANISATION AND PRACTICE OF THE LEGAL PROFESSION

13.  The relevant provisions of the Legal Profession Act (Law no. 51/1995 on the organisation and exercise of the legal profession by lawyers) and the Statute of the Legal Profession, as applicable at the date of the facts of the present case, are described in Ştefan and Ştef v. Romania (nos. 24428/03 and 26977/03, § 20, 27 January 2009).

14.  Those provisions, which allowed legal counsels with at least ten years’ experience to seek admission to the bar without having to sit an exam, were repealed on 31 December 2010 by Law no. 270/2010. The new law did not provide for similar arrangements for the legal counsels.

15.  On 11 September 2010, in compliance with the Legal Profession Act as applicable at that date, the council of the National Bar Association adopted Guidelines for good practice in dealing with applications for admission to the legal profession without an exam (“the Guidelines”; decision no. 902/2010). The Guidelines provided that local bar associations were allowed to evaluate a candidate’s knowledge of the organisation and practice of the legal profession. The evaluation would normally entail free discussions with the candidate, but bar associations also had the option to organise it in writing.

II.     DOMESTIC PRACTICE ON REQUESTS FOR ADMISSION TO THE LEGAL PROFESSION

16.  The Government submitted nine decisions rendered between 2012 and 2014 in which the High Court had held that the local bar associations were allowed, in order to admit candidates without an exam, to verify their knowledge of the organisation and practice of the legal profession. In the High Court’s opinion, such an evaluation did not constitute an exam.

17.  The applicant submitted twenty-eight decisions rendered between 2003 and 2015 in which the High Court had found in favour of legal counsels whose admission to the profession had been denied after being asked to undergo an evaluation of their knowledge of the organisation and practice of the legal profession. In seventeen of those decisions, the High Court considered that in refusing to admit the candidates to the profession for the sole reason that they had not obtained a high enough score in the evaluation or that they had refused altogether to take part in one, the local bar associations (the Suceava Bar Association included) had improperly exercised the discretionary powers conferred on them by the applicable laws. Thirteen of those decisions (those of 4 November 2010, 16 September 2011, 1 November and 4 and 13 December 2012, 19 February, 5 March and 4 June 2013, 22 January and 6 March 2014, and 27 February, 15 June and 3 November 2015) had been rendered following the Court’s judgment in Ştefan and Ştef (cited above) and after the adoption of the Guidelines (see paragraph 15 above).

18.  In some cases, the High Court also found that the local bar associations had not presented reasons for their decisions to deny admission, thus preventing the courts from assessing whether those decisions had been justified.

THE LAW

I.        ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION - fairness of the proceedings

19.  Relying on Article 6 of the Convention, the applicant mainly complained that the domestic proceedings had been unfair, and that the principle of legal certainty had been breached in so far as the High Court had decided actions similar to his both in favour and against legal counsels.

Article 6 § 1 reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A.    Admissibility

1.     Six-month time-limit

(a)    The parties’ submissions

20.  The Government argued that the six-month time-limit had to be calculated starting from 4 September 2014, when the final decision had been delivered in a public hearing. Consequently, that time-limit had expired on 5 March 2015, before the applicant had lodged his application with the Court.

21.  They contended that the applicant, by virtue of his profession, should have been aware of the alleged violation of his rights as soon as the final decision had been adopted on 4 September 2014 and should not have waited until the decision had been served on him.

22.  The applicant pointed out that since the final decision had been served on him on 5 January 2015, he had complied with the six-month time‑limit.

(b)    The Court’s assessment

23.  The Court makes reference to the principles it has established in its case-law concerning the calculation of the six-month time-limit (see, for instance, Lekić v. Slovenia [GC], no. 36480/07, §§ 64-65, 11 December 2018). It further reiterates that where an applicant is entitled to be served automatically with a copy of the final domestic decision, the object and purpose of Article 35 § 1 of the Convention are best served by counting the six-month period as running from the date of service of the copy of the decision, irrespective of whether that decision had been previously delivered orally (see Worm v. Austria, 29 August 1997, § 33, Reports of Judgments and Decisions 1997‑V, and Akif Hasanov v. Azerbaijan, no. 7268/10, § 27, 19 September 2019).

24.  In the present case, the decision of the Bucharest Court of Appeal was served on the applicant on 5 January 2015 (see paragraph 12 above) and the present application to the Court was lodged less than six months thereafter, namely on 6 May 2015 (see paragraph 1 above). It follows that the Government’s preliminary objection must be dismissed.

2.     Other grounds for inadmissibility

25.  The Court further notes that the complaint is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.    Merits

1.     The parties’ submissions

(a)    The applicant

26.  The applicant reiterated that the decision rendered by the Bucharest Court of Appeal had been inconsistent with the High Court’s previous case‑law dating back to 2003.

(b)    The Government

27.  The Government contended that, from 2011 onwards, the High Court had been consistently unfavourable to the admission of legal counsels to the local bar without an exam, thus changing the position it had expressed in the matter between 2006 and 2010. More generally, from 2011 onwards, the domestic courts had consistently held that an evaluation of knowledge was not the same as an exam for entry into the legal profession. They further reiterated that a certain divergence was inherent in the judicial system and was accepted as such by the Court.

28.  Lastly, the Government argued that the final decision of 4 September 2014 (see paragraph 11 above) could not be considered arbitrary, in so far as the domestic court had examined the applicant’s particular situation and had given reasons based on the applicable law.

2.     The Court’s assessment

29.  The Court has already found, in similar cases, that the High Court had rendered conflicting decisions concerning legal counsels’ right to be admitted to the local bar without an exam (see Ştefan and Ştef v. Romania, nos. 24428/03 and 26977/03, § 34, 27 January 2009, and Ilie Şerban v. Romania, no. 17984/04, § 30, 10 July 2012).

30.  It observes that this practice continued following the Court’s judgments in the cases cited above. Moreover, it cannot but observe that the High Court continued to render conflicting decisions on the matter even after the adoption, on 11 September 2010, of the Guidelines issued by the National Bar Association (see paragraphs 15-18 above).

31.  All those cases concerned the application of the provisions of the Legal Profession Act in force before 31 December 2010 (see paragraphs 13 and 14 above). As the applicant had requested admission to the bar before that date (see paragraph 5 above), his situation was also covered by the same provisions, including the Guidelines (see paragraph 15 above). The fact that those provisions were repealed shortly afterwards (see paragraph 14 above) had no impact on the applicant’s concrete situation.

32.  In the Court’s view, the final decision of 4 September 2014 (see paragraph 11 above) of the Bucharest Court of Appeal cannot be considered a departure from the previous case-law due to a new interpretation of the law. In fact, the Court of Appeal did not provide any justification to suggest that there had been a shift in the interpretation of the applicable provisions by the domestic courts.

33.  It can be concluded that these fluctuations in judicial interpretation cannot be regarded as evolving case-law which is an inherent trait of any judicial system (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 126, 29 November 2016), given that the domestic courts, and in particular the High Court, continued to deliver contradictory decisions (see paragraphs 16-17 above).

34.  Moreover, in the present case, although the domestic legal system is equipped with a mechanism capable of ensuring consistency in the practice of the national courts by means of appeals in the interests of the law (see Albu and Others v. Romania, nos. 34796/09 and 63 others, § 40, 10 May 2012), this remedy was not used in order to put an end to that divergence.

35.  The Court cannot but conclude that because of this persistent lack of consistency in the domestic case-law, the applicant was denied admission to the Suceava Bar without an exam, while at the same time other people in his situation obtained that right through court decisions. It thus has no reason to depart from its previous findings on the matter (see Ştefan and Ştef, §§ 36‑37, and Ilie Şerban, §§ 30-31, both cited above).

36.  There has accordingly been a violation of Article 6 § 1 of the Convention.

II.     OTHER ALLEGED VIOLATIONS OF THE CONVENTION

37.  Lastly, the applicant complained of several alleged procedural defects in the domestic proceedings and about the length of those proceedings.

38.  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 the Protocols thereto.

Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

III.   APPLICATION OF ARTICLE 41 OF THE CONVENTION

39.  The applicant did not submit claims for damages or costs and expenses. Consequently, the Court makes no award under Article 41 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the complaint concerning the fairness of the proceedings with regard to the persistent lack of consistency in the domestic case-law admissible and the remainder of the application inadmissible;

2.      Holds that there has been a violation of Article 6 § 1 of the Convention.

Done in English, and notified in writing on 30 November 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Ilse Freiwirth                                         Gabriele Kucsko-Stadlmayer
          Deputy Registrar                                                      President