CASE OF LEKAVIČIENĖ v. LITHUANIA
No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life)
Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano
5. The applicant was born in 1942 and lives in Vilnius. 6. On 27 September 1996 the applicant was admitted to the Bar. She signed an oath “to be faithful to the Republic of Lithuania, to observe its Constitution and laws, to honestly perform her duties as an advocate (a lawyer who has been admitted to the Bar (advokatas)), to observe moral norms, citizen’s rights and freedoms, and to protect professional secrets”. A couple of months later the applicant registered a law office in her name, and started practising law. 7. At the applicant’s request her name was taken of the list of practising advocates on 19 December 2003. As noted by the civil courts afterwards, the applicant had acknowledged that her request had been made owing to the fact that a criminal case had been pending against her (see paragraph 8 below). 8. On 13 August 2004 the applicant was found guilty of forgery of documents (Article 300 § 1 of the Criminal Code) and fraud (Article 182 § 1 of the Criminal Code). The court established that while pursuing her professional practice, the applicant had on more than thirty occasions falsely claimed in writing that she had provided legal services within the framework of the State-paid legal-aid scheme. In addition, the court found that the applicant had forged the signatures of pre-trial-investigation officers on the above documents, submitted them to court officials to receive payment and thereby obtained payment. The crimes she had committed fell into the category of minor intentional crimes (nesunkus tyčinis nusikaltimas), because the maximum possible sanction for them was up to three years of deprivation of liberty (Article 11 § 3 of the Criminal Code). In the applicant’s case, as a sanction, she was ordered to pay a fine, which she did on 24 August 2004. Her conviction expired three years after she had paid the fine, that is to say on 24 August 2007. 9. On 12 September 2007 the applicant asked the Bar Association to readmit her to the Bar. 10. On 20 September 2007 the Bar Association refused the applicant’s request, inter alia, on the grounds that the applicant did not have high moral character (nepriekaištinga reputacija). Given that only three years and twenty-four days had passed since the applicant’s conviction, and taking into account the nature of the applicant’s criminal offence – misappropriation of property for non-existent legal services – as well as the specifics of the professional practice of an advocate, it was reasonable to conclude that the applicant had not regained high moral character within such a short time frame, to meet the requirements set out in Articles 7 § 4 and 8 § 4 of the Law on the Bar (see paragraph 21 below). 11. The applicant challenged this decision before the Vilnius Regional Court. On 25 April 2008 the court heard the applicant’s case. Six witnesses were questioned in court as to the applicant’s reputation; most of them testified to having known the applicant before 1996, when she had been working at the Ministry of Justice. The court partly annulled the Bar Association’s decision and ordered the latter to reconsider the applicant’s request to be readmitted to the Bar. The court noted that the applicant had been convicted of a minor intentional crime. On the day when the applicant had submitted the request to be readmitted to the Bar, her conviction had expired. Consequently, and relying on Article 8 (1) of the Law on the Bar (see paragraph 21 below), the Vilnius Regional Court found that the Bar Association had erred in finding that the applicant had not met the high-moral-character criterion. 12. The Bar Association appealed. It pointed out that the applicant was not of high moral character as she failed to meet the criteria listed in Article 8 (4) of the Law on the Bar. Refusal to readmit the applicant to the Bar had been based on an evaluation of the nature of actions for which she had been convicted. 13. In her defence, the applicant submitted to the appellate court a character reference from a managing director of a private company, where the applicant had worked as marketing director. The reference stated that the applicant performed her duties well; and that she was responsible and had a sense of initiative. As shown from the summary of her arguments by the Court of Appeal, the applicant did not plead that reputation related restrictions on her practising law as an advocate had been more severe than those applied to other law-related professions. 14. On 7 October 2008 the Court of Appeal allowed the Bar Association’s appeal and quashed the first-instance court’s decision. As to the question of high moral character, the Court of Appeal underlined that higher standards were applicable to advocates, as only persons of untainted reputation could participate in the justice system without discrediting it. Therefore, when evaluating an advocate’s conduct it was not sufficient to have regard only to whether the person obeyed the law. It was also pertinent to see a person’s behaviour in the context of the legal norms that regulate the ethics of the advocates’ profession. In this connection the Lithuanian Code of Professional Ethics for Advocates underlined that an advocate should observe legal and moral duties (point 1.2.), should not discredit advocate’s name, the oath he or she swore or the ideal of justice (point 1.3.). An advocate also had duties set out in the Constitution, the Law on the Bar and the Lithuanian Code of Professional Ethics for Advocates (point 2.2) (see paragraph 23 below). 15. The Court of Appeal concurred with the first-instance court’s finding that the term of the applicant’s conviction had expired and that therefore she could not be reproached under Article 8 (1) of the Law on the Bar. Nonetheless, taking into account the fact that she had committed the criminal offence in the course of her professional practice and that her professional practice had been aimed at committing crimes, of which there were more than thirty counts, it was reasonable to conclude that the applicant’s behaviour did not meet the criteria set out in Article 8 (4) of the Law on the Bar. That the conviction had expired did not mean ipso facto that the applicant had regained an irreproachable reputation within the meaning of Article 8 (4) of that Law. For the appellate court, insufficient time had passed from the date when the applicant had committed the crime to when she had asked the Bar Association to readmit her to the Bar. 16. The appellate court also noted that a person could submit a request to be admitted to the Bar and to prove that he or she had regained high moral character. However, it was then for the court to establish, of its own motion, whether sufficient time had passed for a person’s rehabilitation to be objectively validated. A person who claimed to have regained high moral character should bring clear and persuasive evidence that he or she had been following the ethical and disciplinary rules. It was then for the court to examine what the nature of the infringements of law was, what personal situation had led to the infringements being committed, and whether those factors still applied. In the present case, despite four years having passed since the date the crime had been committed, there was still no sufficient basis to conclude that the applicant was of high moral character within the meaning of Article 8 (4) of the Law on the Bar. 17. The Court of Appeal lastly dismissed certain arguments by the applicant that the lower court had erred when interpreting some other legal norms unrelated to the matter of the applicant’s reputation. 18. The applicant lodged an appeal on points of law. She raised a number of arguments about the Bar qualification exam and professional reputation, without maintaining that the criminal conviction had placed her in a worse situation than representatives of other law-related professions. 19. By a ruling of 23 February 2009 the Supreme Court dismissed the applicant’s appeal on points of law, and left the Court of Appeal decision unchanged. On the question of reputation, the Supreme Court noted its practice to the effect that no breach of law (joks nusižengimas) was too serious to unconditionally preclude an individual from ever asking to be reinstated to the Bar (the Supreme Court referred to its earlier ruling in case no. 3K-7-168/2001 of 9 January 2001, see paragraph 30 below). 20. The Supreme Court then held that the expiry of a conviction for a minor intentional crime, as it was indicated in Article 8 (1) of the Law on the Bar, was only one of the criteria when considering the question of a person’s reputation. Moreover, Article 8 (4) of that Law read that a person should meet the criteria of ethics applicable to advocates. Under point 1 of the Code of Professional Ethics for Advocates, advocates were involved in the implementation of justice. The professional practice of an advocate required him or her to carry out his or her duties and obligations towards clients, the courts, the advocate’s profession and society. Moreover, an advocate should never discredit the name of the profession, the oath he or she swore and the ideal of justice. On the facts of the applicant’s case, the Court of Appeal therefore had been correct in finding that the applicant had not proven that she had regained high moral character, in particular given the nature of the criminal acts she had committed.