Last Updated on October 4, 2022 by LawEuro
Information Note on the Court’s case-law 266
September 2022
Angerjärv and Greinoman v. Estonia – 16358/18 and 34964/18
Judgment 4.10.2022 [Section III]
Article 6
Civil proceedings
Article 6-1
Civil rights and obligations
Impossible under domestic law for lawyers to challenge their judicial removal from proceedings for allegedly acting incompetently, inappropriately, irresponsibly and obstructing the proceedings: Article 6 § 1 inapplicable
Facts – The applicants, two lawyers, were removed from separate civil court proceedings in which they had been representing clients, by the judges hearing the respective cases, for allegedly acting incompetently and inappropriately, irresponsibly and obstructing the proceedings. Their removal also triggered disciplinary proceedings by the Bar Association to ascertain whether a disciplinary offence had been committed. These were subsequently terminated.
Under domestic law the removal decisions were not open to any type of challenge. The applicants’ complaints as to the impossibility of challenging their removal were dismissed by the domestic courts.
Law –
Article 6 § 1: In the specific circumstances of the present case, the Court considered that the applicability of this provision raised complex questions of law which were not susceptible of being resolved at the admissibility stage. It therefore joined the question to the merits.
(a) Applicability of the criminal limb – Applying the three Engel criteria the Court concluded that the applicants’ removal from the proceedings had not constituted the determination of a criminal charge against them.
The behaviour for which the applicants had been removed had not, by its nature, amounted to a criminal offence and had not been treated as such under domestic law. Their removal had been based on an Article of the Code of Civil Procedure (CCP) which did not make provision for criminal punishment but laid down various measures intended to ensure the progress of proceedings. Rules enabling a court to react to disorderly conduct in proceedings before it were a common feature of legal systems of the Contracting States and derived from the indispensable power of a court to ensure the proper and orderly functioning of its own proceedings. In the present case, the removal of the applicants had served the precise aim of ensuring the proper and expeditious administration of justice. The Article of the CCP, under which they had been removed, concerned representatives or advisers of a participant in the proceedings, a specific category of people possessing a particular status, and not a population as a whole.
Lastly, given that their removal had concerned only the specific proceedings in issue (and in practice had been limited to only the first level of jurisdiction in the case of the second applicant), the measure could not be said to have been particularly severe. The other measures provided for in the CCP, namely a fine and detention, could be imposed only after a prior warning, and decisions to impose either of those measures were subject to appeal.
Conclusion: Article 6 § 1 inapplicable.
(b) Applicability of the civil limb – There had been a dispute concerning a “civil right” within the meaning of Article 6 § 1, namely the applicants’ right to practise as lawyers. That right entailed advising, representing or defending clients both within and outside court proceedings. It was not disputed that such a right was, as such, recognised under domestic law. However, the impugned measure could not be considered to have involved the determination of that right.
The applicants’ removal from the proceedings was not a sanction that had been imposed in the context of disciplinary proceedings. It was a procedural measure that a judge could take in the course of ongoing proceedings, and which served the aim of ensuring the proper administration of justice. The subsequent disciplinary proceedings would only follow the application of the impugned procedural measure, and afford appropriate procedural guarantees with the possibility of appeal. In any event, as in fact happened in the applicants’ cases, the removal did not predetermine the outcome of the disciplinary proceedings.
Overall, what mattered was not necessarily whether the impugned measure had been applied formally within the context of disciplinary or other proceedings, but rather its impact on the right to practise the profession of a lawyer. In the present case, it had not entailed a general ban on the applicants representing (any) clients before (all or certain) courts, but rather their removal from ongoing court proceedings in which they had been representing specific clients. The applicants had been able to advise those particular clients outside court hearings and to provide their services to any other potential clients and could therefore continue practising their profession.
Conclusion: Article 6 § 1 inapplicable.
Article 8: The general principles concerning the applicability of Article 8 laid down in Denisov v. Ukraine [GC] were relevant as the applicants’ removal from proceedings had amounted to an unfavourable measure employed in the context of a person’s professional life. It had been based on their conduct in their professional function and thus the Court followed a consequence-based approach.
The applicants had not been disbarred, nor had their professional activities been suspended, with them having been able to represent clients in other court proceedings – which they had done. The second applicant had subsequently been readmitted to the proceedings. Further, no evidence had been put forward to suggest that any financial repercussions had been so significant as to constitute an interference with Article 8 nor had any allegations been made about the impact their removal on their good name and professional reputation. Therefore, the Court found that the negative effects which the impugned measures had had on the applicants’ private life, in particular as regards their “inner circle” and their opportunities to establish and develop relationships with others, had not crossed the threshold of seriousness for an issue to be raised under Article 8.
Conclusion: inadmissible (incompatible ratione materiae).
(See also Denisov v. Ukraine [GC], 76639/11, 25 September 2018, Legal Summary)
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