THE ARGES COLLEGE OF LEGAL ADVISERS - 2162/05 [2011] ECHR 402 (8 March 2011)

JUDGMENT STRASBOURG 8 March This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of The Argeş College of Legal Advisers v. Romania, The European Court of Human Rights (Third Section), sitting as a Chamber composed of: Josep Casadevall, President, Corneliu Bîrsan, Alvina Gyulumyan, Ján Šikuta, Luis López Guerra, Nona Tsotsoria, Mihai Poalelungi, judges, and Santiago Quesada , Section Registrar , Having deliberated in private on 8 February 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE The case originated in an application (no. 2162/05) against Romania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the Argeş College of Legal Advisers, on 21 December 2004. The applicant was represented by Mr Victor Horia Panduru, a legal adviser practising in Piteşti. The Romanian Government (“the Government”) were represented by their Agent, Mr. R ă zvan Horaţiu Radu, from the Ministry of Foreign Affairs . The applicant alleged that the refusal of the domestic courts to register it as an association was unjustified and breached its right to association. On 31 August 2009, the President of the Third Section decided to communicate to the Government the complaint concerning the refusal to register the applicant as an association. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). The applicant and the Government each submitted observations on the merits (Rule 59 § 1). THE FACTS I. THE CIRCUMSTANCES OF THE CASE The applicant is an association from Piteşti (Arge ş County) whose registration as a professional association was refused in a final decision delivered by the Arge ş County Court on 4 October 2004. Its name in Romanian is Colegiul Consilierilor Juridici Arge ş (The Argeş College of Legal Advisers). The application on its behalf was lodged by Mr Victor Horia Panduru, the dean of the association. On 8 December 2003 Law no. 514/2003 regarding the organisation and functioning of the profession of legal adviser entered into force. It allowed legal advisers to form professional associations and set a ninety-day time-limit from its coming into force for those professional associations to be established and their statutes to be adopted. It entered into force three days after its publication in the Official Journal on 5 December 2003. . On 6 January 2004 the constituent assembly of the applicant association took place. On the same date its statute was adopted. On 14 January 2004 the applicant requested the opinion (“ aviz ”) of the Ministry of Justice, which was required by Government Ordinance no. 26/2000 on the establishment of associations and foundations, in its version in force at the time. On 21 January 2004 the Ministry of Justice issued a favourable opinion on the statute of the applicant, referring specifically to the purposes of the association described in Articles 6 and 7. Article 6 stipulated that the goal of the association was the unitary organisation and functioning of the profession of legal adviser in Arge ş County and the promotion of the principle that this profession had a complementary place within the national judicial system. Article 7 of the statute provided further that the aim of the association was “the protection and promotion of the rights of its members, (...) concerning a consistent practice of the profession for the protection and promotion of the rights and freedoms of legal entities, authorities and public institutions, as well as of private persons in their relations with judicial institutions (...)”. On 4 February 2004 the applicant lodged an application with Pite ş ti District Court seeking registration in the Register of Associations and Foundations kept by that court. By an interlocutory judgment delivered in private on 9 February 2004 the court granted the request and ordered the registration of the applicant in that register. The decision also provided that the Public Prosecutor's Office could lodge an appeal on points of law within five days from communication. The Public Prosecutor and the Arge ş Bar Association lodged an appeal on points of law against that decision. The National Association of the Romanian Bar joined the proceedings in the Arge ş Bar Association's interest. In the appeal, the prosecutor argued that the interlocutory judgment of 9 February 2004, in approving the purposes stipulated in the association's statute, had infringed Articles 4 and 10 of Law no. 514/2003 in so far as it had allowed the applicant to protect and promote the rights of private individuals, whereas only lawyers had the right to represent or assist private individuals in their relations with judicial institutions. The prosecutor also criticised Article 20 § 3 (j) of the statute, which allowed the council of the association to give its opinion ( “aviz” ) on the creation, within its geographical area, of companies providing freelance consultancy, assistance and legal representation, as well as to resolve complaints against the fees charged by freelance legal advisers. Further, the prosecutor contested Article 20 § 3 (l), which entitled the council of the association to organise competitive examinations for vacant legal adviser positions, draw up job descriptions and inform the disciplinary board of any malpractice on the part of legal advisers. The bar associations supported the prosecutor's arguments. On 24 February 2004 the applicant held an extraordinary general assembly and adopted an additional protocol to the statute, in which it amended Article 7 by removing the reference to representation of private persons. It also removed Article 20 § 3 (j) entirely and amended Article 20 § 3 (l) by limiting the task of the council of the association to providing information on malpractice on the part of legal advisers. On 27 February 2004 the applicant lodged an application with the Pite ş ti Court of First Instance seeking registration of the modifications. By an interlocutory decision of 1 March 2004, delivered in private, the court ordered the registration of those modifications. From the information submitted by the Government, it appears that an appeal was lodged against this judgment and a final decision was delivered on 2 December 2004. No copy of the appeal decision was submitted to the case file. During the trial regarding the appeal lodged by the prosecutor and by the bar associations against the interlocutory judgment of 9 February 2004, the applicant alleged that it had become groundless after the adoption of the additional protocol to its statute. It argued that the only ground for the appeal could be an amendment to the interlocutory decision of 9 February 2004. On 4 October 2004 Arge ş County Court upheld the prosecutor's appeal on points of law in a final decision, modified the interlocutory judgment of 9 February 2004 and dismissed the applicant's request for registration The court considered that, according to Articles 6 and 15 of Law no. 514/2003, the professional activity of a legal adviser could only be carried out within the framework of the legal entity for which he worked, thus excluding the possibility to represent the interests of private individuals. It further considered that Article 10 (a) of that law provided that the profession of legal adviser was incompatible with that of lawyer. It then held that legal advisers could be appointed or hired under the provisions of that law; therefore they could not carry out functions which were specific to those of a lawyer. The court further held that the provisions of Article 20 § 3 (j) of the applicant's statute were at odds with Article 1 of Law no. 51/1995 on the organisation and functioning of the lawyer profession, which provided that only lawyers may offer freelance consulting, assistance and legal representation. The appellate court considered that those aspects of illegality had also been recognised by the applicant, which had allegedly removed them by adopting an additional protocol to its statute. However, the fact that an additional protocol had been adopted could not have validated the interlocutory judgment of 9 February 2004, since that decision had taken account of the existing situation at the time it had been delivered. II. RELEVANT DOMESTIC LAW AND PRACTICE Article 9 of the Government Ordinance no. 26/2000 on associations and foundations provides that the judge in charge of reviewing the legality of a request for registration and the supporting documents is to scrutinise the request within three days of the date it was lodged. If within this deadline, the judge concludes that the documents submitted do not comply with the legal requirements, the representative of the associations shall be summoned for a hearing held in private and one week will be granted in order to remedy those irregularities. When the deadline is reached and the judge concludes that the irregularities have been remediated, it shall take note of this in an interlocutory judgment and shall order the registering of the association in the Register of Associations and Foundations. Article 12 provides that an association is registered in the Register of Associations and Foundations only when the interlocutory judgment allowing the request for registration becomes final. Article 33 of the same act provides that any changes to the statute of an association which has acquired legal personality and has been registered legally have to be recorded in the Register of Associations and Foundations according to a procedure that is similar to the one for registering as an association. The same Ordinance provides that an association may be dissolved by a judicial decision if its goals prove to be contrary to law or public order. The other relevant provisions of Government Ordinance no. 26/2000 are cited in the judgment of Bozgan v. Romania (no. 35097/02, § 11, 11 October 2007). . The relevant provisions of Law no. 514 of 28 November 2003 on the organisation and functioning of the profession of legal adviser read as follows: Article 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 approves and countersigns documents of a judicial nature.” Article 5 Legal advisers may form professional associations to protect and promote their professional interests, in accordance with the legal provisions regulating the association and the setting up of legal entities. Article 10 “ The exercise of the profession of legal adviser is incompatible with: a) being a lawyer; ... ” Article 20 (1) Under the conditions set up in Article 5, the legal advisers may form associations at county levels, by branches or fields of activity, according to professional interests, and, if the case, at national level, in compliance with the law on associations and foundations. (2) The forms of association and organisation at county and national level are set by the statute of the association (...). (3) The setting up of professional associations is based on the constitutional principles of the right to freedom of association and the legislation regulating the association and the setting up of legal entities. Article 25 Professional associations shall be constituted and their statutes adopted within ninety days of the date of entry into force of the present law.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION The applicant complained about the refusal of the domestic courts to register it as an association. It further complained that it could not even reapply for registration, given the fact that by the time the registration request had been refused the deadline for the setting up of such professional associations had expired. It relied on Article 11 of the Convention which reads as follows: “ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” A. Admissibility The Government raised an objection of inadmissibility, arguing that the applicant was not a legal entity which could have legal standing before the Court. They emphasised in this respect that the applicant's request to register as an association had been dismissed and therefore the applicant did not have legal personality. The applicant replied that the essence of its complaint is precisely the refusal of the authorities to register it as an association and thus acquire legal personality. The Court reiterates that the word “victim” in the context of Article 34 of the Convention denotes the person directly affected by the act or omission in issue (see Lüdi v. Switzerland , 15 June 1992, § 34, Series A no. 238). Consequently, the conditions governing individual applications under the Convention are not necessarily the same as the national criteria relating to locus standi in legal proceedings. National rules in this respect may serve purposes different from those contemplated by Article 34 and whilst those purposes may sometimes be analogous, they need not always be. Indeed, the underlying object of the Convention mechanism is to provide an effective and practical safeguard to those personally affected by violations of fundamental human rights (see Velikova v. Bulgaria (dec.), no. 41488/98, ECHR 1999 V (extracts)). If it were to accept the Government's arguments, the Court would be unable to exercise supervisory jurisdiction in respect of the impugned decisions as concerns alleged infringement of the applicant's rights under Article 11 of the Convention, the complaints that the individual members of the applicant may raise before the Court being different from the ones raised by the applicant itself in the instant case (see, mutatis mutandis, Mişcarea Producătorilor Agricoli pentru Drepturile Omului v. Romania , no. 34461/02, §§ 32-35, 22 July 2008). The Court notes, at the same time, that it has already declared admissible requests lodged by a political party or an association whose registration had been refused by the national authorities and which therefore did not exist from the point of view of the domestic law (see for example, Partidul Comunistilor (Nepeceristi) and Ungureanu v. Romania , no. 46626/99 (dec.), 16 December 2003, and The United Macedonian Organisation Ilinden and Others v. Bulgaria , no. 59491/00, (dec.), 9 September 2004). Taking into account the above, the Court considers that the applicant association may claim to be a victim of the violations complained of for the purposes of Article 34 of the Convention. In order to ascertain whether it was in fact a victim, it is necessary to examine the merits of its contentions. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties' submissions The Government, admitting that the refusal to register the applicant as an association amounted to interference to its right to freedom of association, considers nevertheless that this interference was prescribed by law, pursued a legitimate aim and was necessary in a democratic society. In this respect, they referred to Government Ordinance no. 26/2000 which provides that if the legal requirements for the setting up of an association are not satisfied, the request to register is dismissed. The refusal to register the applicant association in the instant case pursued the legitimate aim of protecting public order and the rights and liberties of the others, namely the rights of those who use the services of lawyers to represent their interests. The Government also considered that a just balance had been struck between the applicant's individual right to freedom of association and the general interest in preserving public order. It indicated in this respect the fact that the applicant's Statute set down as one of its goals the protection and promotion of the rights of individuals in their relation with public authorities. This aim was contrary to Law no. 51/1995 which forbids the establishment of bar associations and the practice of the lawyer profession outside the Romanian Bar Association. The same goal was also contrary to Article 10 of the Law no. 514/2003 regulating the profession of legal adviser. The Government also showed that the activity of legal adviser could only be carried out as part of a work relationship and it was not a liberal profession. They submitted to the case file a copy of a decision of the High Court of Cassation and Justice of 12 June 2006. That decision, which was meant to unify the divergent case-law of the domestic courts, concluded that the profession of legal adviser was not a liberal one and therefore it could not be practised as a trade service, but only in the framework of a work relationship. As regards the applicant's argument that it had changed its statute, the Government indicated that that modification was done after the delivery of the interlocutory judgment of 9 February 2004 and as the appeal concerned that specific judgment, the subsequent modifications could not be taken into account. They further held that in any event the changes to the statute did not concern all the articles that had been criticised in the appeal. Finally, the Government added that the persons, who wanted to be members of the applicant association, could still join other associations of legal advisers. The applicant argued that the Ministry of Justice and the court of first instance allowed its request for registration and did not identify any impediment to its registration. Upon seeing the reasons for appeal lodged by the prosecutor and in order to avoid any potential problems, they immediately proceeded to modify the disputed provisions of the Statute, and those changes were also approved by an interlocutory judgment of the first instance court of 1 March 2004, prior to the review of the appeal. They considered that in the light of the changes made to the Statute, the appeal remained without an object and should have been dismissed. As regards the Government's reference to the decision of the High Court of Cassation and Justice which unified the divergent practice of the domestic courts as regards the profession of legal adviser, the applicant underlined that that decision concerned the right to set up profit-making companies and not the right to establish associations, which are non-profit organisations. 2. The Court's assessment (a) General principles The Court reiterates that the right to form an association is an inherent part of the right set forth in Article 11 of the Convention. The ability to form a legal entity in order to act collectively in a field of mutual interest is one of the most important aspects of the right to freedom of association, without which that right would be deprived of any meaning. The way in which national legislation enshrines this freedom and its practical application by the authorities reveal the state of democracy in the country concerned. Certainly States have a right to satisfy themselves that an association's aim and activities are in conformity with the rules laid down in legislation, but they must do so in a manner compatible with their obligations under the Convention and subject to review by the Convention institutions (see Sidiropoulos and Others v. Greece , 10 July 1998, § 40, Reports of Judgments and Decisions 1998-IV; The United Macedonian Organisation Ilinden and Others v. Bulgaria , no. 59491/00, § 57, 19 January 2006; The Moscow Branch of the Salvation Army v. Russia , no. 72881/01, § 59, ECHR 2006 ...; and Ramazanova and Others v. Azerbaijan , no. 44363/02, § 54, 1 February 2007). The exceptions to the rule of freedom of association are to be construed strictly and only convincing and compelling reasons can justify restrictions on that freedom. Any interference must correspond to a “pressing social need”. It is in the first place for the national authorities to assess whether there is a “pressing social need” to impose a given restriction in the general interest. While the Convention leaves to those authorities a margin of appreciation in this connection, their assessment is subject to supervision by the Court, going both to the law and to the decisions applying it, including decisions given by independent courts (see Gorzelik and Others v. Poland [GC], no. 44158/98, §§ 95, 96, 17 February 2004). When the Court carries out its scrutiny, its task is not to substitute its own view for that of the relevant national authorities but rather to review under Article 11 the decisions they delivered in the exercise of their discretion. This does not mean that it has to confine itself to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; it must look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see Sidiropoulos and Others , cited above, § 40, and United Communist Party of Turkey and Others v. Turkey , 30 January 1998, §§ 46 and 47, Reports 1998 I). In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see, mutatis mutandis , Ahmed and Others v. the United Kingdom , 2 September 1998, § 55, Reports 1998-VI; and Goodwin v. the United Kingdom , 27 March 1996, § 40, Reports 1996-II). (b) Application of the general principles to the present case (i) Existence of interference The Court considers that the domestic court's refusal to register the applicant as an association amounts to an interference by the authorities with its right to freedom of association (see, for example, Gorzelik and Others [GC], cited above, § 52; Sidiropoulos , cited above, § 31; and APEH Üldözötteinek Szövetsége and Others v. Hungary (dec.), no. 32367/96, 31 August 1999). This interference will not be justified under the terms of Article 11 unless it was “prescribed by law”, pursued one or more of the legitimate aims set out in paragraph 2 and was “necessary in a democratic society” for the achievement of those aims. (ii) Justification for the interference The Court is satisfied that the interference was prescribed by law, namely by Ordinance no. 26/2000 and pursued a legitimate aim, namely the protection of public order (see mutatis mutandis Bota v. Romania (dec.), no. 24057/03). It must therefore proceed to examine whether the interference was necessary in a democratic society. In doing so, the Court shall scrutinise the particular grounds adduced by the national authorities to justify the interference and the significance of that interference. The Court notes that Argeş County Court, in its decision dismissing the applicant's request for registration, relied on the following reasons: the Law no 514/2003 excluded the right of the legal advisers to represent physical persons and stated that the role of legal adviser was incompatible with that of a lawyer and that legal advisers could not constitute themselves in legal entities specific to the profession of a lawyer. It then held that Article 20 § 3 j) of the Statute was not in compliance with the Law no. 514/2003. It further dismissed the applicant's arguments that it had removed the contested provisions from its Statute, judging that the first-instance judgment of 9 February 2004 was delivered taking into account the Statute before its amendment. It appears from the reasons put forward by Argeş County Court that the main problem with the registration were the provisions of the applicant's Statute, in its version before the amendments of 1 March 2004, which led the court to believe that the applicant association wanted to carry on activities similar to those of lawyers, which by their nature were incompatible with the profession of legal adviser. In that respect, the county court had regard to Articles 7 (defining the aims of the association) and 20 § 3 j) of the Statute. The Court notes nevertheless that these specific provisions had been subject to amendments, which had been allowed by the Pitesti District Court by the interlocutory judgment of 1 March 2004. While it is true that from the information submitted by the Government it appears that the interlocutory judgment had been appealed against and a final decision, whose content is unknown to the Court, had been delivered on 4 December 2004, the Court notes that the applicant took immediate measures to remedy the alleged irregularities and used the procedure set up by law to have the amendments to its statute lawfully registered. The Court further notes that Government Ordinance no. 26/2000 provided that the judge reviewing a request for registration could allow the applicant a deadline to put in conformity the application and its supporting documents. That option was explicitly provided for the first instance proceedings, although no precisions were made in respect of the appeal proceedings. Nevertheless, the Court considers that the main purpose of the option was to give the opportunity to an association making a registration request to comply with all formalities during the registration proceedings, should the initial request be affected by irregularities. In the instant case, the first instance judge did not identify any irregularity in the request for registration and therefore allowed it. Upon seeing the reasons for appeal lodged by the prosecutor, the applicant, wishing to remedy any potential irregularities, proceeded immediately to modify its statute and made a request with the competent court to have these modifications recorded. These modifications had been recorded by 1 March 2004, a date which was also within the ninety-day time-limit set by Law no. 514/2003 for the setting up of associations of legal advisors. In the light of the fact that the national law aimed to give associations a chance to remedy any irregularities during the registration proceedings, the decision of the appellate court, delivered on 4 October 2004, to consider irrelevant the changes brought to the Statute of the association appears to contradict the purpose of the law. Moreover, the decision of the county court proved to be even more severe in its effects, given that the applicant did not have any other opportunity to reapply for registration, taking into account that by the time its request for registration had been refused, the deadline for the setting up of associations of legal advisers was expired. The factual situation in the instant case is different from that in the case of Bota (cited above), where the Court found proportional the dissolution of an association which had among its statutory goals the “setting up of bar associations” and whose members effectively performed activities which were within the exclusive competence of the Romanian bar association. In the present case it does not appear that the statutory provisions of the applicant gave any indication that the association had the aim of setting up such organisations. Further, the Court notes that the national law provides for the possibility of dissolving an association should it be proven that it has goals which are contrary to public order or that it acts contrary to its statutory provisions (see, mutatis mutandis , Bozgan v. Romania , no. 35097/02, § 36, 11 October 2007). As regards the Government's invoking of the decision of the High Court of Cassation and Justice, the Court considers that it is not relevant to the instant case, taking into account that that decision concerned the right of legal advisers to set up profit-making companies. Or, in the instant case, the applicant wanted to set up a non-profit association. Likewise, the Court does not consider relevant the argument according to which in any event the changes made to the statute did not concern all the articles which were contested by the prosecutor and the bar association in their appeals. When dismissing the registration request, Argeş County Court did not analyse the changes to the Statute, but simply considered them irrelevant and therefore it did not give any reasoning as to whether the changes addressed all the reasons for the appeal. Taking into account all the above, in the Court's view, the reasons invoked by the authorities to refuse the registration of the applicant association were not relevant and sufficient. Moreover, such a severe measure as refusal of the request for registration, taken even before the association started operating, appears disproportionate to the aim pursued. That being so, the interference can not be deemed necessary in a democratic society. There has accordingly been a violation of Article 11 of the Convention II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION The applicant complains in substance under Article 6 § 1 of the Convention that the judges reviewing its request for registration were biased, that the proceedings were not completed speedily, and that the bar association's appeal had been allowed unlawfully. H aving regard to the facts of the case and its finding of a violation of Articles 11 above, the Court considers that it has examined the main legal questions raised in the present application. It concludes, therefore, that there is no need to examine the admissibility and the merits of the complaints under Article 6 § 1 of the Convention (see, for example, Kamil Uzun v. Turkey , no. 37410/97, § 64, 10 May 2007). III. APPLICATION OF ARTICLE 41 OF THE CONVENTION Article 41 of the Convention provides: “ If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage The applicant made no claim in respect of pecuniary or non-pecuniary damage, asking the Court to find a violation of Article 11 of the Convention. The Court recalls at the outset that a judgment in which it finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach (see Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, § 19, ECHR 2001 I, and Former King of Greece and Others v. Greece [GC] (just satisfaction), no. 25701/94, § 72). In this respect, the Court draws attention to the fact that Article 322 § 9 of the Romanian Code of Civil Procedure allows the applicant to address the national courts with an extraordinary appeal ( revizuire ) in order to restore the situation existing before the breach of the Convention (see, among others, Bindea v. Romania , no. 32297/04, §§ 24 and 25, 5 May 2009). B. Costs and expenses The applicant made no claim in respect of costs and expenses and accordingly the Court does not award it any sum on this account. FOR THESE REASONS, THE COURT UNANIMOUSLY Declares the complaint under Article 11 admissible; 2. Holds that there has been a violation of Article 11 of the Convention; Holds that there is no need to examine the admissibility and the merits of the remainder of the application; Done in English, and notified in writing on 8 March 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Santiago Quesada Josep Casadevall Section Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII