CASE OF MATEESCU v. ROMANIA
Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Alvina Gyulumyan;Corneliu Bîrsan;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
6. The applicant was born in 1953 and lives in Bucharest. 7. He is a doctor with substantial experience, having been a general practitioner for more than eighteen years. In this capacity, he currently has his own private practice, with two employees. He also teaches at the Bucharest Faculty of Medicine and has authored several works in the field of general medicine. 8. In 2006 the applicant graduated from law school; one year later, he registered to become a lawyer, after having passed the annual entrance examination organised by the Bucharest Bar. On 18 December 2007 the Bucharest Bar issued a decision validating the results of the examination and declaring that the applicant was admitted to the Bar. 9. The Bucharest Bar further decided on 14 February 2008 to register the applicant as a trainee lawyer (avocat stagiar) as of 15 February 2008. A two-year traineeship period being an obligatory condition for obtaining a licence to practise as a lawyer, the applicant signed a traineeship agreement (contract de colaborare) with the B.P. private law firm. On 15 February 2008 the Bar approved the applicant’s traineeship within the firm. 10. On 13 March 2008 the applicant submitted a request to the Dean of the Bucharest Bar to be allowed to pursue his two-year traineeship (stagiu) in compliance with section 17 of Law no. 51/1995 regulating the legal profession, notwithstanding the fact that he simultaneously had his own private medical practice. He considered that “the medical profession was not incompatible with the dignity of the legal profession or the lawyers’ rules of conduct within the meaning of Rule 30 of the Rules governing the Legal Profession”. On 20 March 2008, applying section 14 (b) and section 53 (2) (e) of Law no. 51/1995, the Bucharest Bar rejected the applicant’s request. In its decision the Bar held: “the applicant’s request to practise simultaneously as a lawyer and as a doctor is dismissed, and the applicant must consequently opt for one of the two professions.” 11. On 21 April 2008 the applicant contested that decision before the National Bar Association. He challenged the reason for the dismissal of his request, which, citing section 14 (b), referred to ineligibility to practise as a lawyer for anyone who already pursued a “profession that infringes the dignity and the independence of the legal profession or is contrary to good morals”. He contended that his professional CV, including a Ph.D. in medicine, a career of teaching at the university and the authorship of several books on medicine, could on no account infringe the dignity of the legal profession. At the same time, he pointed to the fact that he was neither an employee nor a trader, as proscribed by the legislation regulating the activities of lawyers. On 18 June 2008 the National Bar Association upheld the Bucharest Bar’s decision, this time on the basis of section 15 of Law no. 51/1995, which enumerated “exhaustively” the professions that were compatible with the profession of lawyer (see “Relevant domestic law” below). As the practice of medicine was not specified among those professions, the applicant’s request was dismissed. 12. That decision was contested before the Bucharest Court of Appeal. In its reply to the applicant’s submissions, the respondent argued, firstly, that the combined interpretation of sections 14 and 15 of the Law led to the conclusion that no other profession could be practised in parallel with that of a lawyer, except for those restrictively enumerated under section 15; furthermore, the practice of two liberal professions at the same time was not permitted by the law, nor was it desirable, in view of the fact that each liberal profession required 100% dedication on the part of the person practising it. 13. On 20 January 2009 the court allowed the applicant’s claims, holding that section 14 (b) was not applicable, in so far as “the profession of doctor does not impinge on the independence of the profession of lawyer”. The court further held that any restriction on practising a profession must be expressly and unequivocally prescribed by law, which was not the case in this instance. Moreover, the Romanian Constitution protected the right to work, which could not be subject to any limitations, with a few exceptions expressly enumerated in section 53, such as national security reasons, protection of public order, health and public morals or protection of individual rights and freedoms, none of which was applicable in the applicant’s case. Furthermore, the prohibition on practising as a lawyer while also practising as a doctor was not included in the text of section 14 (b) of Law no. 51/1995, which referred only to professions that infringed the dignity and the independence of the legal profession or were contra bonos mores. The court further held that section 15 of the Law did not contain an exhaustive list of the professions compatible with the profession of lawyer, in spite of the National Bar Association’s interpretation of that provision to the effect that if the medical profession was not included in the text among the compatible professions, this meant, by converse implication, that it was not compatible with the profession of lawyer. The incompatible professions were enumerated exhaustively in section 14, and the profession of doctor was not among them. The assertion that practising a liberal profession required total dedication and implicitly a lot of time on the part of the practitioner could not be taken into consideration for the assessment of the lawfulness of the decisions taken by the local and national Bars; not having enough time to devote to clients’ cases had nothing to do with the independence of the legal profession. The court thus confirmed the applicant’s right to practise both professions simultaneously, annulling the Bars’ decisions. 14. The National Bar Association appealed against that judgment to the High Court of Cassation and Justice. It argued that while section 14 of the Law listed the professions that were incompatible with the profession of lawyer in a generic manner, giving examples, section 15 regulated, strictly and restrictively, the exceptions that were allowed, among which the profession of doctor was not mentioned. At the same time, the simultaneous practice of both professions infringed the principle of the independence of lawyers. In wanting to practise both professions, the applicant demonstrated only his extreme mercantilism, as he “minimised the importance of these professions, treating them as mere sources of income”. 15. On 24 June 2009 the High Court allowed the appeal and dismissed the applicant’s request, holding that the combined interpretation of sections 14 and 15 led to the conclusion that the list of compatible situations was exhaustive and thus section 15 referred to the only professions that by law were compatible with that of a lawyer; the High Court pointed out that even if the provisions of Rule 30 of the Rules governing the Legal Profession, relied on by the applicant in his defence, also enumerated other situations of incompatibility and compatibility, they were of inferior rank to a law and therefore they could not contradict those of the law itself. The relevant provisions of the Romanian Constitution read as follows: “(1) The right to work shall not be restricted. Everyone has the free choice of his or her profession, trade or occupation, and workplace.” “(1) The exercise of certain rights or freedoms may only be restricted by law, and only if necessary, as the case may be, for: the defence of national security, of public order, health or morals, or of citizens’ rights and freedoms; the conduct of a criminal investigation; or prevention of the consequences of a natural calamity, disaster or extremely severe catastrophe. (2) Such restriction shall be ordered only if necessary in a democratic society. The measure shall be proportionate to the situation that caused it, shall apply without discrimination, and shall not impair the existence of such right or freedom.” “(1) A person who meets the following conditions may be a member of a Bar in Romania: (a) he or she is a Romanian citizen and a holder of civil and political rights; (b) he or she is a law faculty graduate or a doctor of law (Ph.D.); (c) he or she is not in one of the categories of ineligibility specified by this Law; (d) he or she is medically fit to practise as a lawyer. (2) Compliance with the condition in point (d) of subsection (1) above shall be proved by means of a medical certificate attesting that the person is in good health, issued on the basis of findings by a medical board constituted under the terms specified in the Rules governing the legal profession.” “Practising the profession of lawyer shall be incompatible with: (a) a salaried activity within a profession other than the legal profession; (b) occupations affecting the dignity and independence of the legal profession or good morals; (c) direct involvement in trading activities.” “Practising the profession of lawyer shall be compatible with: (a) the position of member of parliament or senator, or member of a local or county council; (b) teaching activities, and offices in higher legal education; (c) literary and publishing activities; (d) the function of arbitrator, mediator, conciliator or negotiator, tax adviser, adviser on intellectual property, adviser on industrial property, licensed translator, administrator or liquidator in procedures of judicial reorganisation or liquidation, in accordance with the law.” “(1) Admission to the profession shall be obtained on the basis of an examination organised by the Bar, under the provisions of this Law and the Rules governing the profession. (...)” “(...) (2) The conditions for completing the traineeship and the rights and obligations of lawyers on probation, and of supervising lawyers and the Bar towards them, shall be regulated by the Rules governing the profession. (3) The training term shall be suspended if the lawyer performs military service or is conscripted, if he or she is absent from the profession for good reasons, or if the professional guidance is terminated through no fault of the lawyer on probation. The training already completed shall be taken into consideration when calculating the completion of the term. (4) After the training term is completed, the lawyer on probation shall take the examination to become a permanent lawyer.” “(1) A Bar Council shall be composed of five to fifteen members, elected for a four-year term of office. The President and Vice-President of the Bar shall be included in that number. (2) The powers of the Bar Council shall be as follows: (...) (e) to check and establish that the lawful requirements have been met as regards applications for admission to the profession, and to approve admission to the profession on the basis of an examination or an exemption from the examination; (...)” “The Council of National Bar Associations shall have the following powers: (...) (o) it shall check, at the request of the persons concerned, that the decisions of the Bar Councils on admission to the profession are lawful and based on good grounds; (p) it shall annul decisions by the Bar on grounds of unlawfulness, and settle complaints and legal disputes brought against decisions adopted by Bar Councils, in the circumstances specified by law and the Rules governing the profession; (...)” The relevant parts of the Rules governing the Legal Profession read as follows: “In order to be registered and to practise this profession, the lawyer must not be in one of the situations of incompatibility referred to in the law.” “(1) The following are incompatible with the practice of the profession of lawyer, unless declared otherwise by a lex specialis: (a) personal trading activities, performed with or without a licence; (b) the status of associate in private companies such as a general partnership (societate în nume colectiv), a limited partnership or a partnership limited with shares (societate comercială în comandită simplă sau în comandită pe acțiuni). (c) the status of manager of a limited partnership with shares private company (societate în comandită pe acțiuni); (d) the status of CEO, sole manager or member of the board of directors of a private company such as limited liability or a joint-stock company (societate comercială cu răspundere limitată sau pe acțiuni). (2) The lawyer may be an associate or partner in a limited liability or a joint- stock private company (societate comercială cu răspundere limitată sau pe acțiuni) (3) The lawyer may be a member of the Board of a limited liability or a joint-stock private company, on condition that he/she brings this information to the Dean of the Bar [...]