CASE OF DE MOOR v. BELGIUM
Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
C. Russo
7. The applicant, a Belgian national born in 1930, pursued a career in the Belgian army. In 1981 he retired with the rank of capitaine-commandant. On 7 July 1983 he gained a law degree. 8. On 27 May 1983 Mr De Moor informed the Chairman of the Hasselt Bar Association that he intended to apply for enrolment on the list of pupil advocates. On 15 June he had an interview with the Chairman. 9. The Bar Council, when it learnt of the applicant’s intention at its session on 23 June 1983, reacted in a somewhat unfavourable manner, but took the view that it was unnecessary to give a decision as no formal application had been made. 10. On 27 June, in the course of a telephone conversation, the Chairman of the Bar Association allegedly told the applicant that the Bar Council had decided not to enrol him because he had completed one full career and the Hasselt Bar already had over two hundred members. 11. By a letter of 25 August 1983 Mr De Moor submitted an application in the prescribed form. 12. At a meeting on 8 September the Bar Council decided to consult the Chairman (doyen) of the National Bar Association. On 6 October, after considering the latter’s opinion, according to which there were no grounds for refusing Mr De Moor’s application ("er geen argumenten zijn om de Heer De Moor te weigeren"), the Council appointed two rapporteurs from among its members. 13. On 17 November the Chairman read out the report of the first rapporteur, which was unfavourable, and the second submitted a comprehensive report on the matter. During the deliberations, it was pointed out that Mr De Moor had not taken the oath and had therefore not been entitled to seek enrolment. The same day the Council rejected the application. 14. The Chairman of the Bar Association informed Mr De Moor of this decision in a letter of 23 November 1983. He stated that it was consistent with the practice followed by Bar Councils according to which persons who had completed a full career outside the Bar were not admitted to the list of pupil advocates. 15. On 29 November 1983 Mr De Moor filed an application in the Conseil d’Etat to have the decision set aside on the ground that the Hasselt Bar Council did not constitute an "independent and impartial tribunal" within the meaning of Article 6 para. 1 (art. 6-1) of the Convention. 16. On 16 February 1984 the Bar Council produced its statement of defence. It argued that the Conseil d’Etat lacked jurisdiction and that Mr De Moor had no interest in the proceedings inasmuch as he had not taken the oath and could not therefore be enrolled on the list of pupil advocates. On the merits, it affirmed that a refusal to enrol could be based on reasons other than those justifying disciplinary measures. The fact that the applicant had already completed one full career justified the impugned decision, particularly because he had stated that, as his income was sufficient, he wished to engage in what he regarded as a stimulating occupation on a part-time basis. 17. Mr De Moor filed his reply on 24 April 1984. He maintained that the uncertainty concerning his admission to the Bar had made it impossible for him to find an advocate who was prepared to present him so that he could take the oath; this obstacle could be surmounted only by the designation of an ad hoc pupil master. 18. On 15 September, 24 October and 5 December 1986 the Legal Adviser (auditeur) responsible for preparing the case requested various documents from the Bar Council, which sent them to him on 11 December. 19. On 20 February 1987 the auditeur submitted his report, which was communicated to the applicant on 20 March. He expressed the view that the Conseil d’Etat had jurisdiction and that Mr De Moor had an interest in having the Bar Council’s decision quashed. There was no legal obligation for a law graduate to take the oath before seeking enrolment on the list of pupil advocates. The text of the decision refusing the applicant admission to that list had not cited as a reason the fact, mentioned orally on 27 June 1983 (see paragraph 10 above), that the Hasselt Bar already had a large number of lawyers. It had referred solely to the circumstance that the applicant had completed a full career outside the Bar. Yet, in the light of the judgment of the Court of Cassation of 13 May 1952 (see paragraph 36 below), a refusal to enrol of this nature should have been grounded either on the failure to comply with the conditions laid down in Article 428 of the Judicial Code or on the postulant’s unfitness or incompetence to practise as a lawyer. It followed that the reason given by the Hasselt Bar Council did not justify in law the decision of 17 November 1983, which should therefore be set aside. 20. On 13 May 1987 the Bar Council filed a final pleading, reiterating the same two objections to the admissibility of the application (see paragraph 16 above). It added that the reason given fell within the scope of the wide discretion that the Bar Council considered itself to enjoy in this area. 21. On 21 August 1987 the President of the Conseil d’Etat, Mr Vermeulen, transferred the case from the Chamber before which it was pending and directed that it should be heard by the General Assembly of the Administrative Division. On 14 September he postponed the public hearing until 12 October 1987 as some members of the Conseil d’Etat were unable to attend on 8 October, the date for which it had been initially set down. 22. On 16 September 1987 the National Bar Association sought leave to intervene in the proceedings. It considered Mr De Moor’s application inadmissible. As he had not taken the oath and did not therefore satisfy one of the statutory conditions for enrolment, the Bar Council could only have given an opinion, in respect of which an application for annulment could not lie. It argued in addition that the Conseil d’Etat lacked jurisdiction. In its view, the intention of the legislature had been that only the ordinary courts, and not the Conseil d’Etat, should have jurisdiction for disputes arising from the decisions of the Bar Councils. 23. On 12 October 1987 the General Assembly gave leave for this intervention and heard the parties, after which the President reserved the decision. 24. On 28 November 1988 the applicant complained to the President of the length of the proceedings. He allegedly received no reply. 25. On 28 November 1989 he laid a formal complaint with the Brussels Crown Counsel for a denial of justice. On 7 May 1990 he learned of the authorities’ decision not to proceed with his complaint. 26. In a judgment of 24 September 1991, the General Assembly, presided over by Mr Baeteman, President of the Conseil d’Etat, noted that the assembly which had heard the case up to that point had not concluded its deliberations and could no longer validly sit on account of the death of the judge-rapporteur, the appointment of one of the judges to another post and the retirement of Mr Vermeulen on 23 May 1991. It consequently decided to reopen the oral proceedings before the General Assembly composed differently, at a hearing to be held on 15 October 1991. 27. On 31 October 1991 that assembly, refusing to follow the opinion of the auditeur, Mr De Wolf, ruled that the objection based on the Conseil d’Etat’s lack of jurisdiction ratione materiae was well-founded. It took the view, inter alia: "that having regard to the relations between the Bars and the judiciary and the concern to preserve advocates’ independence, the legislature’s intention [had been] that the decisions of the Bar Councils should fall outside the scope of review by the Conseil d’Etat. Accordingly, the decisions of the Bar Council [could not] be set aside by the Conseil d’Etat. The right to have his case heard by an independent and impartial national tribunal which the petitioner [inferred] from Article 6 para. 1 (art. 6-1) [of the European Convention on Human Rights] [did not] mean that the Conseil d’Etat [had] to rule on a matter which [fell] outside its jurisdiction;" It therefore dismissed the application. 28. Each Bar has as the administrative organs for the profession of advocate the Bar Council (conseil de l’Ordre), the Chairman of the Bar Association (bâtonnier) and the General Assembly. 29. The Bar Council is composed of the Chairman of the Bar Association and two to sixteen other members, according to the number of advocates on the Bar roll and the list of the pupil advocates. The Hasselt Bar Council has fourteen members in addition to the Chairman. The members are directly elected by the General Assembly of the Bar Association, to which all advocates on the roll are convened (Article 450 of the Judicial Code). The election is held before the end of each judicial year. 30. The Council exercises numerous functions of an administrative, regulatory, adjudicative, advisory and disciplinary nature. For the purposes of the present case it is sufficient to mention that it is responsible for drawing up the roll of advocates and the list of pupil advocates. 31. At the material time, Article 432 of the Judicial Code gave the Council unfettered discretion in this respect: "Enrolment on the roll of advocates and on the list of pupil advocates shall be determined by the Bar Council. No appeal shall lie from its decision as it has absolute authority over the composition of the roll and the list of pupil advocates." An Act of 19 November 1992 amended that provision by requiring that any rejection of an application for enrolment had to state reasons. In addition, under the new Article 469 bis, an appeal from such a decision lies to the Disciplinary Appeals Board, without prejudice to the right to file an appeal on points of law with the Court of Cassation at a later stage. Another amendment concerned the public nature of the proceedings. Article 467, second paragraph, of the Judicial Code now provides: "The Bar Council, sitting in disciplinary proceedings or as in disciplinary proceedings, shall hear the case in public, unless the advocate against whom the proceedings have been brought or the person applying for enrolment or re-enrolment requests that the proceedings be private." 32. The enrolment of a lawyer on the list of pupil advocates or as a member of the Bar was and is governed by Article 428 of the Judicial Code: "No one may bear the title of avocat or practise as an advocate unless he is a Belgian national or a national of a Member State of the European Economic Community and possesses the degree of Doctor of Laws; he must have taken the oath prescribed by law and be enrolled on the Bar roll or on the list of pupil advocates. ... Save where the law provides otherwise, no further qualification may be added to the title avocat." 33. As regards the taking of the oath, which is a separate formality from admission to pupillage, Article 429 states as follows: "The oath shall be taken at a public sitting of the Court of Appeal, candidates being presented by an advocate enrolled as a member of the Bar of the jurisdiction of that court for not less than ten years, in the presence of the Chairman of the Bar Association of the seat of the Court of Appeal and at the suit of Crown Counsel". The candidate shall swear the following oath: ‘I hereby swear allegiance to the King, obedience to the Constitution and to the laws of the Belgian people, and not to deviate from the respect due to the courts and the public authorities, or to advise or defend any cause that I do not, to the best of my knowledge and belief, hold to be just.’ The registrar shall draw up a record of the whole proceedings and endorse each diploma to certify that the formalities have been completed." 34. To be enrolled on the list of pupil advocates a person holding a law degree, or Doctor of Laws, who has usually already taken the oath, lodges with the secretariat of the Bar Association an application for enrolment and his diploma bearing the endorsement certifying that he has taken the oath. In principle an application for admission as a pupil advocate contains the information on the basis of which the Bar Council can determine whether the candidate meets the required standards of integrity and decency. 35. The Bar Council considers whether the candidate satisfies all the requirements as to good character and thus whether he is a fit person to bear the title of avocat. It also verifies that he does not fall within any of the statutory categories of incapacity and incompatibility set out in Article 437 of the Judicial Code, which is worded as follows: "The profession of advocate shall be incompatible with: 1o the posts of full-time member of the judiciary (magistrat effectif), registrar and civil servant; 2o the functions of notary (notaire) and bailiff (huissier de justice); 3o industrial or commercial activity; 4o remunerated employment and activity, whether in the public or private sector, unless it does not jeopardise the independence of the advocate or compromise the dignity of the Bar. ..." 36. The Bar Council has a very wide discretion in deciding whether to admit candidates to the Bar. That discretion must however be exercised within the limits laid down by the code. Seeking to define those limits Mr Lemmens, the auditeur, in his report (see paragraph 19 above) took as authority a judgment of the Court of Cassation of 13 May 1952 concerning a decision taken by the Council of the Pharmacists’ Association. Under the Act of 19 May 1949 setting up the Pharmacists’ Association, that Council was vested with powers, as regards admission to the roll, similar to those of the Bar Council. The relevant ground of the judgment in question is worded as follows: "... it may be inferred from paragraph 3 [of section 2 of the Act of 19 May 1949] laying down the procedure for appeals against decisions refusing applications for enrolment, in the light of the purpose of that text and its legislative history, that the Councils of the Association, responsible for drawing up the roll of the Association, can found their refusal of an application for enrolment only on a defect in the qualifications on which the application is based or on the current unfitness of the candidate or on his professional incompetence." (Pasicrisie, I, p. 578)