Refusal to include two lawyers in the Bar Association’s list of advocates did not violate the Convention
Trainee lawyers. Role of lawyers. Refusal to include in the Bar of two lawyers because of their previous conviction. The ECtHR considered that interference with the right to respect for their privacy had not exceeded the threshold “necessary in a democratic society” for the protection of third party rights, as this would ensure the proper and correct functioning of the judiciary and therefore there was no breach of Article 8 of the Convention. According to the case law of the European Court of Human Rights, lawyers play an important role in the administration of justice. This particular role entails certain tasks and constraints, in particular with regard to the professional and ethical conduct of lawyers, which must be discreet, honest and ethical.
Ramūnas Jankauskas, is a Lithuanian national who was born in 1972 and lives in Pakruojis (Lithuania). Mr Jankauskas had previously been a pre-trial investigator, but he was convicted of abuse of that office and soliciting bribes. After he had served his sentence and his conviction had expired, he made a successful application to the Lithuanian Bar Association to be admitted as a trainee advocate. However, he did not declare his previous conviction. After information about the conviction later came to light, Mr Jankauskas was struck off the trainee advocates’ list by a decision of the Court of Honour of Advocates. This was on the grounds that he had withheld information relevant to the assessment of his reputation, demonstrating that he did not have a sufficiently high moral character. Mr Jankauskas challenged the decision in the domestic courts, but he was unsuccessful.
Vladislava Ramunė Lekavičienė, is a Lithuanian national who was born in 1942 and lives in Vilnius (Lithuania). She was admitted to the Bar as an advocate, but in December 2003 she removed her name from the list of practicing advocates due to a pending criminal case against her.
In August 2004 Ms Lekavičienė was convicted of over thirty instances of forgery and fraud, relating to untruthful claims that she had provided legal services within the framework of the State-paid legal-aid scheme. Her conviction expired in August 2007, shortly after which time she requested readmission to the Bar. Citing the short period of time that had elapsed and the nature of the crimes committed, the Bar Association refused her request on the grounds that she did not possess the requisite high moral character. The refusal was appealed through the court system and was ultimately upheld by the Supreme Court.
THE DECISION OF THE COURT
Article 8 (right to respect for private and family life)
The Court held that the exclusion of the applicants from the list of advocates had amounted to an interference with their right to respect for private life, as the exclusions must have affected the applicants’ professional reputation and professional relationships. However, the Court found that there had been no violation of Article 8, because the interference had been “in accordance with the law”, in pursuit of a legitimate aim, and “necessary in a democratic society” in order to achieve that aim.
The exclusions had been carried out in accordance with the law, because the decisions of both the Bar Association and the domestic courts had relied on relevant passages of the Law on the Bar and the Code of Ethics for Advocates. The exclusions had been carried out in pursuit of the legitimate aim, because they had been enforced in order to protect the rights of others, in accordance with the advocates’ obligations and the need to safeguard the good functioning of the justice system overall.
Furthermore the Court held that both the exclusions had been “necessary in a democratic society”.
According to the Court’s case law, lawyers play a most important role in the administration of justice. That special role entails a number of duties and restrictions, particularly with regard to their professional conduct, which must be discreet, honest and dignified. Similar principles are advanced in Recommendation R (2000) 21 by the Committee of Ministers of the Council of Europe.
In Lithuania, domestic case law had also emphasised the high standards applicable to the profession of an advocate. The findings by the domestic courts had been consistent with that case law. Mr Jankauskas had committed crimes whilst working in law enforcement which had been extremely cynical in nature. Ms Lekavičienė had systematically cheated the court system out of money. Given the nature of the applicants’ conduct, the conclusions made by the domestic tribunals had not been unreasonable.
Furthermore, in the case of Mr Jankauskas, the domestic findings were based not only on the applicant’s offences, but also on the fact that he had failed to declare these when applying to the Bar. The Court shared the conclusion that he should have understood the need to do so. In the case of Ms Lekavičienė, the Court noted that the expiry of an individuals’ conviction does not necessarily mean that the person has regained a high moral character. In the applicant’s case, the domestic court had found that an insufficient time – four years – had passed since her conviction for forgery and fraud. It is not for the European Court to substitute its view of what would be an appropriate interval. As for the applicants’ argument that the standards applicable to them had been unreasonably high in comparison to other law-related professions, the Court noted that the reputation-related requirements for prosecutors and judges had been even more stringent.
Furthermore, there was nothing in the domestic courts’ decisions that prevented either applicant from reapplying to the Bar in the future.
In these circumstances, the Court considered that the interference with the applicants’ right to respect for their private life had not exceeded what had been “necessary in a democratic society” for protecting the rights of others by ensuring the good and proper functioning of the justice system.
Accordingly, there had been no violation of Article 8. stress dose steroids