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Normative aspects of the lawyer profession in Moldova

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Vitalie Nagacevschi / July 20, 2003
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On 13 May 1999, the Parliament of the Republic of Moldova adopted the Law No. 395-XIV on Lawyers. According to this law, practising of the lawyer profession was conditional upon a given lawyer’s membership of the Union of Lawyers of the Republic of Moldova, the Union being a professional organisation of public right, instituted by the same law.

During the constitutionality control of the Law on Lawyers of 1999, the Constitutional Court, in its Ruling No. 8 (February 15, 2000), stated that through the conditioning of the lawyer profession on the membership of a single professional organisation, the access to this activity is prevented for the professional jurists — non-members of this organisation, but who do hold licenses entitling them to provide juridical assistance, which fact confirms their juridical qualifications. So, the compulsory membership of a single organisation is nothing else but the setting up of the monopoly of the professional organisation members on the lawyer profession. The said law also contained some other provisions that did not correspond to the constitutional norms.

The above mentioned ruling of the Constitutional Court surpassed in a positive sense the jurisprudence of the European Court for Human Rights, that had catalogued some professional associations as organisations of public right, these being founded by the legislators with the purpose of ensuring the public supervision of the respective professions and the jurisprudence allowing, in these cases, to condition practising in some professions on the membership of these associations. For these categories, the European Court for Human Rights established that conditioning some profession activities (including that of lawyers) on the membership in legally instituted professional organisations of public right does not constitute a violation of the negative right of the professional not to associate; the mentioned right is guaranteed by article 11 of the European Convention on Human Rights.

Analysing the judgements of the European Court of Human Rights, in which the Convention on Human Rights is interpreted, we could say that the respective decisions are establishing the minimum limit that should be observed by the states-signatories of the Convention. At the same time, the mentioned decisions, in no case, ban the right to establish much more democratic norms, that is to say, the states-signatories are not banned to go much further in their exercise of democracy.

To give some examples, we could say the following:

Protocol 6 of the Convention allows the states-signatories to have in their legislation the capital punishment for some categories of criminal acts committed during wartime or during the time of war imminent danger. But this provision cannot be interpreted as a provision that bans the States to abolish the capital punishment during the war or in time of war imminent danger.

From this point of view, the decision of the Constitutional Court of 2000 could be interpreted as more democratic than the norms established by the European Court of Human Rights, in the interpretation of article 11 of the Convention.

On 19 July 2002, the Parliament of the Republic of Moldova adopted a new Law on Lawyers, which, in essence, contained the same provisions — conditioning the lawyer profession on the membership in professional organisations, the Bar.

Upon the adoption of this law, the Parliament ignored the jurisprudence of the Constitutional Court, as well as the provisions of the Law on Legislative Acts — provisions, according to which, upon the elaboration of legislative acts the legislator should take into consideration the constitutional jurisprudence.

On the basis of these considerations, the deputies of the parliamentary opposition fraction of the People’s Christian Democratic Party (PCDP) submitted to the Constitutional Court a complaint requiring the control, in light of the constitutional jurisprudence, of the constitutionality of the Law on Lawyers, adopted in 2002.

The Constitutional Court decision of 19 June 2003 surprised, it recognised the mentioned Law to be absolutely constitutional, and the jurisprudence of the European Commission and European Court for the Human Rights was put forward to argue the case.

When considering this decision in the light of the jurisprudence of Strasbourg European organs, we could affirm that the decision conforms to the mentioned jurisprudence. At the same time, for the absolute correctness of this affirmation, the Constitutional Court, before pronouncing the mentioned decision, should have revised its decision of 2000, and this thing didn’t happened. So, we found ourselves in the situation when there are two decisions of the Constitutional Court, which contradict each other.

The argument, contained in the recent decision of the Constitutional Court, saying that by the date of coming into force of Law No. 1260-XV, the Law No. 395-XIVof 13 May 1999, had been abrogated, is not quite correct. The sense of this argument is that the Constitutional Court decision of 2000 can be referred to the Law of 1999; that is absolutely incorrect. By its decisions, the Constitutional Court sets forth principles that are applicable to all legislative acts, and by no means, to some selective legislative acts. In conclusion, in order to be able to pronounce a decision containing principles other than those enunciated in the precedent decision (or decisions), the Court has to revise its previous decision.

Besides, the last decision contains a number of mistakes that contravene to the Law on Lawyers and, if it had been as it was stipulated in the respective decision, it would have been impossible to invoke the jurisprudence of the European Court of Human Rights.

For example, the Constitutional Court stipulates that “The Bar is created at the will of lawyers, expressed at the Congress, considered to be legally gathered, if the majority of the lawyers of the Republic of Moldova take part in the Congress.” It is an wrong statement, as the Bar is instituted not at the will of the lawyers, but at the will of the legislator, and this is exactly the thing that makes a professional organisation an organisation of public right. If the Bar had been instituted at the will of lawyers, that would have meant an organisation constituted on benevolence principles and, as a result, the negative right of the lawyers not joining the Bar would have been respected.

We can not overlook the fact of recognising as constitutional the legal provisions, establishing a length of service term in the lawyer profession, for those persons that want to be members of the Bar Council or the Ethics and Discipline Commission. The most frequent argument for the need to select highly-experienced and professional candidates is not the right argument, as among the lawyers with less than a 5-year length of service there could be ex-judges of the Constitutional Court (after the end of their mandates); in such cases nobody can state that these candidates have low professional qualifications or experience.

Generalising the above mentioned, we can say that the Constitutional Court decision No. 12 of 19 June 2003, in general lines, complies with the jurisprudence of the European Court of Human Rights, when it conditions the practising of the lawyer profession on the membership in the Bar, but is incompatible with the Constitutional Court decision No. 8 of 15 February 2000.

At the same time, we cannot agree to the provision on the lawyer profession retaining the length of service requirement as one criteria of eligibility for the Bar Council or/and the Ethics and Discipline Commission, as such provisions are discriminatory.

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