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THIRD
SECTION
DECISION
Application no.
37898/05
Daniel BURLACU
against Romania
The
European Court of Human Rights (Third Section), sitting on
29 May 2012 as a Committee composed of:
Egbert
Myjer,
President,
Luis
López Guerra,
Kristina
Pardalos,
judges,
and
Marialena Tsirli, Deputy
Section Registrar,
Having
regard to the above application lodged on 10 October 2005,
Having
deliberated, decides as follows:
THE FACTS
The
applicant, Mr Daniel Burlacu, is a Romanian national who was born in
1974 and lives in Bucharest.
A. The circumstances of the case
- On
28 January 2005 the applicant, a legal adviser (“consilier juridic”),
lodged an application with the judge delegated to the Office of
Trade Registry (“the OTR”) seeking registration in
the Trade Register of a commercial company having as the object
of its activity “judicial activities”.
- By
an interlocutory judgment delivered in private on 31 January 2005
the judge dismissed the request on the ground that the professional
activity of a legal adviser could not be performed by a commercial
company. The decision was based on the provisions of sections 2, 3
and 4 of Law no. 514/2003 concerning the organisation
and functioning of the profession of legal adviser (“Law
514/2003”) according to which the professional activity of a
legal adviser could only be carried out within the legal entity for
which he worked as an employee, or within a public institution. He
added that professional activity performed by a legal adviser could
not be considered a commercial activity as defined by sections 3
and 4 of the Commercial Code.
- The
applicant lodged an appeal on points of law, citing the fact that the
OTR had already registered many commercial companies set up by legal
advisers to enable them to carry out their professional activity. In
this respect he submitted a list of all the commercial companies
already registered in Bucharest in the years 2004 and 2005 as well as
a decision rendered by the Alba Iulia Court of Appeal, by which an
appeal on points of law similar to his was allowed.
- On
19 May 2005 the Bucharest Court of Appeal dismissed the appeal on
points of law, upholding the interlocutory judgment on the same
grounds. With respect to the applicant’s argument that many
legal advisers performed their legal activity within registered
commercial companies, the court argued that the precedent did not
represent case law within the Romanian legal system.
B. Relevant domestic law and practice
1. Law 514/2003
- The
relevant provisions of Law no. 514/2003 read as follows:
Section 4
“A legal adviser...provides counsel and
representation to the authority or public institution where he works,
or for the legal entity with which he has working relations, protects
their legitimate rights and interests in their relations with public
authorities, any kind of institution, and any Romanian or foreign
private person or legal entity, according to the law and to the
specific regulations; he also approves and countersigns documents of
a judicial nature.”
2. The decision of the High Court of Cassation and
Justice of 12 June 2006
- From
2004 onwards divergent case-law emerged across the country concerning
the application of section 46 (1) of the Company Act
(Law no. 31/1990), as republished and amended, with respect
to requests submitted by legal advisers and lawyers for the setting
up and registering of commercial companies having as the object of
their activity consultancy services and legal assistance and
representation.
- In
order to ensure the uniform interpretation and application of the
law, the Prosecutor General applied to the High Court of
Cassation and Justice, in accordance with the provisions of
Article 329 of the Romanian Code of Civil Procedure.
- In
a judgment delivered on 12 June 2006, the High Court confirmed
the existence of a divergence in the case-law concerning the
interpretation of section 46 (1) of the Company Act. It
held that applications for the setting up and registration of
commercial companies having as the object of their activity
consultancy, assistance and legal representation were inadmissible.
- The
High Court’s interpretation of the provisions in question
became binding on all the domestic courts. However, it could not
alter the outcome of cases already decided.
3. Other relevant domestic case-law
- The
applicant submitted copies of several final decisions rendered before
June 2006 in which the domestic courts had accepted similar requests
lodged by legal advisers for the setting up of commercial companies.
COMPLAINTS
- The
applicant complained under Article 6 § 1 of
the Convention about inconsistency in the domestic case-law and
that the substantive law had been wrongly applied. He also claimed
that the judge delegated to the OTR had decided on his case in
private without summoning him. He further contended that the length
of the proceedings had been unreasonable, as the court needed four
months to render its decision on the appeal on points of law lodged
by him.
- Relying
on Article 11 of the Convention, he claimed that his right to freedom
of association had been infringed due to the refusal of the Romanian
authorities to register the commercial company he had intended to set
up.
THE LAW
A. Article 6 § 1 of the Convention
- The
applicant complained under Article 6 of the Convention that the
domestic courts had applied conflicting case-law to identical claims
and they had decided his case wrongly. Article 6 of the Convention,
in so far as relevant, read as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- The
Court reiterates at the outset that it is not its task to take the
place of the domestic courts. It is primarily for the national
authorities, notably the courts, to resolve problems of
interpretation of domestic legislation (see Brualla Gómez
de la Torre v. Spain, 19 December 1997, § 31,
Reports of Judgments and Decisions 1997-VIII;
Waite and Kennedy v. Germany [GC], no.
26083/94, § 54, ECHR 1999-I; and Saez Maeso
v. Spain, no. 77837/01, § 22, 9 November 2004).
Its role is to verify whether the effects of such interpretation are
compatible with the Convention (see Işyar v. Bulgaria,
no. 391/03, § 48, 20 November 2008).
- The
Court has previously concluded that certain divergences in
interpretation may be accepted as an inherent trait of any judicial
system which, like the Romanian one, is based on a network of trial
and appeal courts with authority over a certain territory. However,
where there are divergences in the application of substantively
similar legal provisions to persons in near identical groups, a
problem with legal certainty does arise (see Zielinski and Pradal
and Gonzalez and Others v. France [GC], nos. 24846/94
and 34165/96 to 34173/96, § 59, ECHR 1999VII, and
Ştefănică and Others v. Romania, no.
38155/02, § 37, 2 November 2010). According to its
case-law, the principle of legal certainty is implied in the
Convention and constitutes one of the basic elements of the rule of
law (see Beian v. Romania
(no. 1),
no. 30658/05, § 39, ECHR 2007-XIII (extracts).
- In
Iordan Iordanov and Others v. Bulgaria (no. 23530/02,
2 July 2009), the Court identified the issues that need to
be assessed when analysing whether conflicting decisions in similar
cases violate the principle of legal certainty under Article 6 of the
Convention: 1) the existence of “profound and long-lasting
divergences” in the relevant case-law; 2) whether the
domestic law provides for a mechanism capable of removing the
judicial inconsistency; and 3) whether this mechanism was
applied and, if so, what were the effects.
- Turning
to the present case, the Court notes that the applicant’s
request for the setting up and registration of a commercial company
to enable him to carry out his professional activity of legal adviser
was dismissed by the Bucharest Court of Appeal on 19 May 2005,
despite the fact that many similar requests were allowed during the
same period. The existence of a divergence in the case-law concerning
the interpretation of section 46 (1) of the Company Act is
therefore not disputed. However, it cannot be argued that this
divergence was “profound and long-lasting”. It must on
the contrary be accepted that the divergences of approach that had
arisen between courts were merely the inevitable outcome of the
process of interpreting the provisions of a law which had been
recently enacted (in 2003) and adapting them to the material
situations they were intended to cover. These divergences may be
tolerated when the domestic legal system is capable of accommodating
them (see,
Nejdet Şahin and Perihan Şahin v. Turkey
[GC], no 13279/05, §§ 86-87, 20 October 2011).
- The
Court notes in this respect that a year later, on 12 June 2006,
an appeal in the interests of the law was granted by the Romanian
High Court of Cassation and Justice, which laid down binding
guidelines for a uniform interpretation of the disputed legal
provisions. Therefore, it should be accepted that in a reasonably
short period of time, the domestic legal system has put an end to the
impugned divergence in the case-law (see, mutatis mutandis,
Zelca and others v. Romania (dec), no. 65161/10). This is
all the more true since the applicant has not mentioned or relied on
any judgments delivered after 12 June 2006 that continued
to depart from the solution adopted in the High Court’s ruling
on the appeal in the interests of the law.
- It
should also be noted that the judgment concerning the applicant was
duly reasoned, in terms of the facts and the law and the
interpretation made by the Bucharest Court of Appeal of the facts
submitted to it for examination cannot be said to have been
arbitrary, unreasonable or capable of affecting the fairness of the
proceedings. The Court notes in this respect that the correctness of
the Bucharest Court of Appeal’s approach to the matter was
acknowledged by the Romanian High Court of Cassation and Justice,
which also gave an interpretation of the provisions in question which
was unfavourable to the applicant.
- Having
regard to all of the above, the Court finds that there has been no
breach of the very substance of the applicant’s right to a fair
trial.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 (a) and 4
of the Convention.
B. Remaining complaints
- The
applicant also complained under Article 6 § 1
about the length of proceedings before the court of appeal and the
lack of publicity of the proceedings before the judge delegated to
OTR. He further raised a complaint under Article 11 of the Convention
about the refusal of the domestic authorities to register his
commercial company in the Trade Register.
- The
Court has examined these complaints. However, in the light of all the
material in its possession, and in so far as the matters complained
of are within its competence, the Court finds that they do not
disclose any appearance of a violation of the rights and freedoms set
out in the Convention or its Protocols.
- It
follows that this part of the application must be rejected in
accordance with Article 35 §§ 3 (a)
and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Marialena Tsirli Egbert Myjer
Deputy Registrar President
