CASE OF BUZESCU v. ROMANIA
Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
8. The applicant was born in 1951 and lives in Bucharest. 9. In 1977 the applicant joined the Constanţa Bar (Romania). He practised as a lawyer 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 and to transfer to his colleagues the cases on which he was then working. 10. In a decision of 30 October 1981 the Constanţa Bar acknowledged the applicant’s request to cease his professional activities and decided to cancel the applicant’s membership. According to the applicant, he did not request that his membership of the Bar be cancelled. 11. In 1985 the applicant became a member of the New York Bar and practised there as an attorney until 1991. 12. In August 1990 the applicant applied to the Bucharest Bar to be registered as a lawyer there. On 5 November 1990 the Chairman of the Romanian Union of Lawyers (Uniunea Avocaţilor din România – “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.” 13. The Chairman of the UAR confirmed his position in the course of subsequent meetings with the applicant in March 1991. 14. In March 1991, after his Romanian citizenship had been restored, the applicant returned to live in Romania. On 12 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 a lawyer and to be removed from the list of lawyers who were ineligible to practise as he had been a member of another Bar. 15. 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 lawyers ineligible to practise, as he was still a member of another bar. 16. From 1991 onwards the applicant offered investment advice to several multinational corporate clients investing in Romania. 17. In 1994 he founded a company, Petru Buzescu SRL, subsequently renamed Buzescu & Co SRL, of which he was the sole shareholder and whose main field of activity was business and management consultancy. 18. On 19 May 1996 the Constanţa Bar decided to remove the applicant’s ineligible status and to register his name on the list of practising lawyers with effect from 10 May 1996. 19. From May 1996 until October 1999, given that he had been reinstated by the Constanţa Bar, he paid monthly Bar fees and UAR fees amounting to 1,983,000 Romanian lei (approximately 225 euros [“EUR”], according to the average exchange rate for the relevant period). 20. On 14 May 1996, in accordance with the Legal Profession Act (Law no. 51/1995) and the Rules governing the Legal Profession, the applicant submitted an application to the Bucharest Bar for a transfer from the Constanţa Bar. He did not receive any response. 21. On 27 June 1996 the UAR decided that, in accordance with Article 5 § 3 (j) of Legislative Decree no. 90/1990 concerning the organisation and practice of the legal profession, 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 19 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. 22. 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 not communicated to him until 10 February 1998, when he was involved in other proceedings before the Bucharest Court of Appeal. 23. On 3 September 1996, following a communication from the Embassy of the United States, G.D., head of a department of the Romanian Ministry of Foreign Affairs, sent a letter to the Chairman of the UAR pointing out that the applicant’s re-registration with the Bar in 1991 was an act of reparation, that he was the legal adviser for Romania for a number of important companies from the United States mentioned in the letter, and that the best possible ways of resolving his case should be considered in the interests of good relations between the two countries. 24. 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. 25. As he did not receive any response, on 18 March 1997 the applicant brought an action before the Bucharest Regional Court, in accordance with the Administrative Litigation Act (Law no. 29/1990). He asked the court to establish that he had a right to be transferred from the Constanţa Bar to the Bucharest Bar, to compel the latter to allow his application for a transfer and to issue a decision authorising him to practise as a lawyer in a private law firm. 26. 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. 27. 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 application for a transfer, 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 the Bucharest Bar to notify him in writing about its position in respect of his application for a transfer. 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. 28. 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. 29. In July 1997 the applicant applied to the Court of Appeal requesting it to invite the UAR to join as a defendant the proceedings he had brought against the Bucharest Bar. He pointed out that he would be seeking to compel the UAR 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. 30. On 18 February 1998 the applicant filed an application with the UAR requesting the annulment of that decision and confirmation of his status as a lawyer and a member of the Constanţa Bar, by way of reparation for an abuse committed under the communist regime. He also referred to his letter of 9 June 1997 to the UAR, pointing out that no answer had been given to his request that the UAR take the necessary decisions in order to clarify his situation. 31. On 14 March 1998 the UAR confirmed its decision of 27 June 1996, stating, inter alia, that the applicant had “committed fraud as he had practised as a lawyer all this time without legal authorisation”. No information was given to the applicant as to the manner in which his status could be clarified in order to practise as a legally registered lawyer. Similar statements concerning alleged fraud on the applicant’s part were made by the UAR during the proceedings before the Court of Appeal. 32. On 30 March 1998 the applicant instituted proceedings against the UAR before the Bucharest Court of Appeal seeking the annulment of the decision of 27 June 1996. In his application, he submitted that: following the entry into force of the Legal Profession Act (Law no. 51/1995), the UAR had had no power to annul the Constanţa Bar’s decision of 1991; that, under section 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 and since only the courts had had jurisdiction to annul in 1996 a decision taken in 1991; and that, as regards the merits of his application, which the court was expressly invited to examine, in the absence of specific regulations indicating where to apply to remedy an unlawful administrative decision deleting him from the Bar’s list of lawyers, he had acted in good faith, according to the principles of administrative law, when he had lodged his application with the Constanţa Bar in 1991. The applicant pointed out that his administrative application of 18 February 1998 to the UAR had not constituted a remedy. That case was joined to the proceedings against the Bucharest Bar. 33. On 30 June 1998, during a hearing before the Court of Appeal, the applicant alleged that the decision of 30 October 1981 had been unlawful since he had not applied to have his registration as a lawyer cancelled and, consequently, the Constanţa Bar had been entitled to adopt its decision of 8 May 1991 in order to redress the abuse committed in 1981. The applicant submitted a number of questions to be answered by the UAR. The UAR replied to the question whether the fact that he had applied to the Constanţa Bar in 1991 for the annulment of the 1981 decision was unlawful: it considered that the applicant could have lodged such an application with the Bar, but that the decision to be taken fell within the UAR’s exclusive field of competence. The UAR conceded that the legal basis of its decision of 27 June 1996 was Article 5 § 3 (j) of Legislative Decree no. 90/1990. As regards the monthly Bar and UAR fees paid by the applicant, the UAR replied that these were insignificant and that, according to the letter of 3 September 1996 from the Ministry of Foreign Affairs, the applicant provided legal services to many companies, but he had not established an office for that purpose, nor had he paid the 10% fees to the lawyers’ social-security fund, thus committing fraud and unlawfully practising the profession of lawyer. At the same hearing, 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. 34. 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 words “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. 35. 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. 36. On 27 October 1998, during a hearing before the Court of Appeal, the applicant replied to questions submitted by the UAR. He contended that he had not provided legal services since he had come back to Romania, that he had not practised as a lawyer with an established office and that, consequently, he had not paid the 10% of his income required by Law no. 51/1995. 37. On 6 April 1999 the Bucharest Court of Appeal dismissed the applicant’s application, holding that, pursuant to Legislative Decree no. 90/1990, the Constanţa Bar had acted ultra vires in taking its decision of 8 May 1991, and that, according to Rule 130 of the Rules governing the Legal Profession (“the Rules”) issued by the UAR in 1995, the latter had been entitled to annul the decisions of local bars on grounds of illegality. As regards the fact that in 1991 the applicant had lodged an application with the Constanţa Bar, considering himself entitled to be reinstated as a lawyer by the body that had unlawfully cancelled his membership with the Bar in 1981, the Court noted that the 1981 decision had been adopted on the basis of a request by the applicant himself. 38. The applicant lodged an appeal with the Supreme Court of Justice against the aforementioned decision of the Bucharest Court of Appeal, submitting that that court had not taken into account all the arguments and the evidence submitted. Accordingly, in his grounds of appeal he submitted that the court had erroneously found that he had been at fault for not lodging an application with the competent body in 1991 for re-registration as a lawyer, given that he had applied in 1991, on the basis of Law no. 29/1990, to the body that had taken the unlawful and politically motivated administrative decision of 8 May 1981, although he had not requested to be deleted from the Bar’s list of lawyers. Considering that he should not have had to request to be readmitted to the legal profession because he had been excluded from the Bar by a decision without any legal basis, the applicant had lodged the application with the issuing body, namely the Constanţa Bar, as there was no provision for specific proceedings to redress the effects of such unlawful administrative decisions. The applicant also submitted that, pursuant to the aforementioned Legal Profession Act (Law no. 51/1995), which repealed Legislative Decree no. 90/1990, the UAR had no longer been competent in 1996 to annul Bar decisions, and that Rule 130 of the Rules could not have supplemented that law. The applicant underlined that the UAR’s decision of 27 June 1996 had been illegal because the UAR had been time–barred in 1996, according to Law no. 29/1990, and because the legal basis for the decision, namely Legislative Decree no. 90/1990, had been repealed by Law no. 51/1995. In his grounds of appeal and also in his written observations to the Supreme Court, the applicant added that, according to the documents in the file, the UAR had known since 1992 that he had been registered as a lawyer by the Constanţa Bar in 1991, and that, in accordance with Article 5 § 3 (d) of Legislative Decree no. 90/1990, the UAR had at that time not only had the power but also the duty to review and possibly annul the decision of 8 May 1991 by the Constanţa Bar. The applicant referred to the UAR’s reply to the questions of 30 June 1998 and concluded that, even supposing that the UAR should have been consulted in 1991 by the Constanţa Bar on his re-registration as a lawyer, he was not to blame for lodging the application with that Bar or for the latter’s or the UAR’s failure to follow the proper procedure. The applicant requested the court to consider whether it was normal in these circumstances that he could not practise his profession in Romania, and asked it to annul the UAR’s decision of 27 June 1996 and to allow his transfer to the Bucharest Bar. 39. In a final decision of 28 January 2000 the Supreme Court dismissed the applicant’s appeal. 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 readmission of lawyers to the Bar, and that the provisions of section 58 (g) and (i) of Law no. 51/1995 should be interpreted as conserving these prerogatives. On the basis of Rule 130 of the Rules, 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, conceding nevertheless that in the text of this law such a power was not expressly maintained. 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 reregistration as a member of the Bar. 40. 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 in spite of the fact that, according to him, in the interim the Bucharest Bar has approved the registration of more than ten foreign lawyers. 41. On 14 February 2004 the Council of the UAR examined the applicant’s request of 12 April 1991 to the Constanţa Bar, the latter’s decision of 8 May 1991 and the UAR’s decision of 27 June 1996, annulling the applicant’s registration with the Constanţa Bar. The Council decided to repeal its decision of 27 June 1996, to restore the applicant’s previous status as a lawyer eligible to practise and to notify this new decision to him and to the Constanţa Bar. 42. On 23 February 2004 the Council of the Bucharest Bar granted the applicant’s transfer to the Bucharest Bar, ordered his registration on that Bar’s list of lawyers and decided to notify this decision to him and to the Constanţa Bar. 43. In a letter of 26 May 2004 the applicant stated that on 23 April 2004 the UAR had notified him of its decision of 14 February 2004, and that to date he had not received any formal notification from the Bucharest Bar concerning its decision of 23 February 2004. 44. The relevant provisions of the Romanian Civil Code read as follows: “An official deed must be adopted in the form required by law, by a public official competent to act in the place where it was adopted.” “An official deed shall be authentic in respect of any person subject to its terms and clauses. The execution of an official deed ... 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 deed.” 45. The relevant provisions of the Administrative Litigation Act (Law no. 29/1990) read as follows: “... the application to the court (to annul an administrative act) must be lodged within a year from the date on which the act is notified.” “... If a claim is allowed, the court shall also rule on the damages claimed.” “Where the claimant has applied for the annulment of the administrative act without claiming damages at the same time, as the amount of the damage 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.” 46. Article 5 § 3 of Legislative Decree no. 90/1990 concerning certain measures with regard to the organisation and practice of the legal profession provided: “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 readmission to the Bar and for transfer and secondment of lawyers from one Bar to another; ...” 47. On 9 June 1995 the Legal Profession Act (Law no. 51/1995) entered into force, repealing Legislative Decree no. 90/1990. Its relevant provisions read as follows: “The Bar shall be required to draw up an annual roll of qualified and trainee lawyers, 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 Romanian Union of Lawyers.” “The Bar Council shall have the following powers: ... (c) to prepare, amend and publish the annual roll of lawyers. It shall transmit this list, with any changes that are necessary, to all interested bodies; ... (h) to acknowledge applications for transfers or secondment within the Bar; (i) to monitor compliance with the conditions set out in this Act and the Rules as regards the manner of exercise of the profession, and to organise and keep details of such reviews...” “The Council of the UAR shall meet on a quarterly basis and ... shall have the following powers: ... (b) to discuss, approve and modify the Rules governing the Legal Profession; ... (g) to approve admission to the Bar in all the cases provided for by the law; ... (i) to rule on complaints against decisions by the Bar Council concerning the refusal of transfer or secondment requests.” 48. On 6 March 2001 Law no. 51/1995 was amended, granting the following powers to the Council of the UAR in a new section 63 (i): “The Council of the UAR shall have the following powers: ... (i) to annul decisions by the Bar on grounds of illegality.” 49. Rule 130 of the Rules governing the Legal Profession, adopted by the UAR and published in the Official Gazette no. 237 of 17 October 1995, 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 Rules, provided that the Bar’s autonomy is respected. Decisions by the Dean of the Bar may be contested before the Bar Council.” 50. On 12 March 1997, in a final judgment (no. 450), the Supreme Court of Justice held in proceedings between a private party and the UAR that the latter was an administrative authority with a structure and powers provided for by law, and that the Administrative Litigation Act (Law no. 29/1990) applied to its decisions. On 18 February 2003, in a final decision (no. 658), the Supreme Court of Justice held that the UAR was an administrative authority carrying out administrative acts, that it had a structure and powers established by law, and that it fulfilled a public service role. On 4 March 2003, in a final decision (no. 866) in proceedings against the UAR concerning the right to be admitted to the legal profession without an examination, the Supreme Court of Justice held that “it [was] undisputed that the decision [of the UAR was] an administrative act issued by a public authority” and that Law no. 29/1990 was applicable to the case. 51. On 30 January 2003, in a final decision (no. 327), the Supreme Court of Justice set aside a decision of an appellate court on the ground that, inter alia, it had reversed without stating reasons a previous order concerning the admission of evidence.