Last Updated on June 27, 2019 by LawEuro
FIRST SECTION
DECISION
Application no. 30141/15
Tomasz ZIELIŃSKI-BARAN
against Poland
The European Court of Human Rights (First Section), sitting on 26 June 2018 as a Committee composed of:
Aleš Pejchal, President,
Krzysztof Wojtyczek,
Jovan Ilievski, judges,
and Abel Campos, Section Registrar,
Having regard to the above application lodged on 11 June 2015,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Tomasz Zieliński-Baran, is a Polish national, who was born in 1980 and lives in Warsaw.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. Between 1 January 2010 and 30 June 2012 the applicant pursued legal training in order to become a public notary (notariusz). During the training he had failed to obtain a pass mark from one, out of two, partial tests (kolokwium).
4. On 5 August 2012 he lodged with a Notary Chamber in Warsaw a request to be issued a certificate confirming that he had completed the notary training (zaświadczenie o odbyciu aplikacji notarialnej).
5. On 8 August 2012 the Notary Chamber in Warsaw refused to deliver such a certificate on the ground that the applicant had failed one of the partial tests. The applicant was also informed that this certificate was necessary in order to be allowed to sit the final exam.
6. On 21 September 2012 the National Notary Chamber upheld the decision.
7. The applicant appealed. He relied, in particular, on Articles 2, 7, 17 and 14 of the Convention.
8. On 4 February 2013 the Warsaw Regional Administrative Court quashed the decisions on the ground of non-compliance with both procedural and substantive law.
9. The court held that the applicant had met the conditions laid down in the Public Notaries’ Act – as applicable at the material time (see paragraph 19 below). It was not in dispute that he had attended the practical and theoretical training for the period of two years and six months. The term “attended the notarial training” (odbyć aplikację notarialną) as defined by the relevant legal provisions was clearly to be understood as attending relevant courses and working assiduously as a trainee. The law had not provided for other conditions, such as succeeding any partial exams. The refusal to issue a certificate was therefore, in the court’s view, unlawful.
10. As to compliance with the procedural law, the court was of the view that under the provisions of administrative law issuance of a certificate was not meant to confer any rights on the addressee. It was merely a technical act. Its nature was to confirm certain facts; not to decide on rights of obligations. The contested decision was therefore also in breach of this provision.
11. The National Notary Chamber lodged a cassation appeal against this judgment with the Supreme Administrative Court.
12. The applicant submitted in his pleadings to the Supreme Administrative Court that the Notaries Act had been amended with effect from 23 August 2013. It was only from that date onwards that section 72 (c) of that Act expressly provided that succeeding partial exams was necessary in order to obtain the certificate in question.
13. He also attached letters from the Notary Chambers in Łódź (of 31 October 2012) and Katowice (of 9 November 2012). The Łódź Chamber stated that its trainees, who had failed one partial test, had been given a certificate that they had attended the training. The Katowice Chamber stated that these trainees had been given a certificate to the effect that they had attended the training, with a note “the training programme not completed”.
14. On 18 September 2014 the Supreme Administrative Court gave a judgment. It noted that the crucial issue in the case was the interpretation of the notion “attendance of the training” (odbycie aplikacji). The court held that this term had to be understood, in the light of linguistic interpretation, as a situation when a trainee had completed all obligations connected with the training programme and what had been confirmed in a manner provided in that programme. The court stressed that professional training could not be illusory and restricted to mere passive attendance of the training sessions. Most importantly, as the notarial profession is a profession of public trust and should only be practised by people with high level of legal qualifications.
15. The court further found that under paragraph 13 of the Minister’s Ordinance of 22 December 2005 (see paragraph 21 below) local Notary Chambers had a competence to organise exams and partial exams in the context of professional training. The chambers were therefore allowed to verify the trainees’ knowledge by way of these exams. The lack of coherence between practices of certain local chambers as regards the verification of knowledge by trainees did not affect this conclusion.
16. The court concluded that it was the responsibility of the Notaries’ Chambers to verify that the trainees were sufficiently competent to enter the profession. Hence, the reasoning of the first-instance court was erroneous.
17. This judgment was served on the applicant on 12 December 2014.
18. Subsequently, the applicant was not allowed to sit the final exam and was not admitted to the notarial profession.
B. Relevant domestic law and practice
1. The Notaries’ Act
19. Section 72 of the Notaries’ Act of 21 March 1991 (Prawo o notariacie) as applicable at the material time, read as follows:
“Notarial training starts on 1 January each year, lasts two years and six months and consists in the trainee getting familiarised with the profession of a notary. The trainee is obliged to familiarise him/herself with judicial acts in civil, commercial and land register cases.
The council of a relevant Notary Chamber delivers a certificate to a trainee who has attended the notarial training, within 14 days of its completion.”
20. On 23 August 2013 the Act was amended and a new section 72 (c) was added. This section reads, in so far as relevant, as follows:
“Trainees’ responsibilities’ include:
…
2) Participation in seminars and trainings provided in the training program;
… ”
2. The Minister of Justice
21. On 22 December 2005 the Minister of Justice enacted an Ordinance on the Organisation of the Notarial Training (rozporządzenie Ministra Sprawiedliwości w organizacji aplikacji notarialnej). Paragraph 13, in the version applicable at the material time, stated:
“A Notary Chamber may organise partial tests (kolokwia) and assessments (sprawdziany) in various areas of law, in which the training is organised, in order to verify the trainees’ knowledge.”
3. Internal regulations
22. On 18 September 2009 the National Notary Chamber adopted a resolution No.VII/48/2009. It provided for organisation of two partial exams during the notarial training, one after the first year and the second one after the second year of training.
4. The Supreme Administrative Court’s case-law
23. Several other former notarial trainees who had failed the partial tests also appealed against the decisions of the local Notary Chambers refusing to deliver a certificate confirming that they had completed the notary training.
24. However, the Supreme Administrative Court repeatedly held, in a string of judgments, that the local chambers had been right to refuse to issue the certificate in question. The court found, inter alia, that the notarial training was a professional training, it was completed only when a trainee had fulfilled all obligations connected with the programme and what had been confirmed in a manner provided in that programme. It was not enough to participate in the training. The training was meant to produce a result: of the trainee getting familiarised with the profession of a notary. The partial testes were a mean to verify whether this result had been achieved. Consequently, failure to succeed any of the partial tests meant that the notarial training had not been completed (cf. judgments of 30 October 2013, case no. 1629/13; of 4 November 2013, case no. II GSK 990/13; of 14 April 2015, case no. II GSK 837/14; of 30 June 2015, case no. II GSK 1322/14 and of 8 June 2016, case no. II GSK 119/15).
COMPLAINTS
25. The applicant complained under Article 8 of the Convention that the refusal to issue the certificate confirming that he had followed the notarial training had breached his right to respect for his private life as he was prevented from sitting the final exam.
26. Under Article 14 of the Convention he claimed that other persons in a similar situation to his had been issued with the certificate in question.
THE LAW
1. Article 8 of the Convention
27. The applicant complained under Article 8 that the refusal to issue him a certificate confirming that he had attended professional training for public notaries had been in breach of his right to respect for is private life. This provision of the Convention, in so far as relevant, reads as follows:
Article 8
“1. Everyone has the right to respect for his private … life (…).
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
(a) Applicability of Article 8
28. The Court reiterates that it has already held that restrictions on registration as a member of certain professions (for instance, lawyer), which could to a certain degree affect the applicant’s ability to develop relationships with the outside world, fall within the sphere of his or her private life (see Campagnano v. Italy, no. 77955/01, § 54, ECHR 2006-IV). In the case of Bigaeva (see Bigaeva v. Greece, no. 26713/05, §§ 23-25, 28 May 2009) the Court held that Article 8 could also cover the right of access to a profession, specifically that of a lawyer.
29. In the present case the applicant pursued a legal training in order to become a public notary. However, he was refused to be issued with a certificate confirming that he had attended the training. Consequently, he was not allowed to take the final exam and was not admitted to the profession (see paragraph 18 above). Therefore, the Court considers that this decision had an effect on the enjoyment of the applicant’s right to respect for his private life within the meaning of Article 8 of the Convention.
(b) Lawfulness and legitimate aim
30. The Court further accepts that the refusal to issue the certificate to the applicant constituted an interference with his right to respect for his private life within the meaning of Article 8 of the Convention. This interference was prescribed by law, as the domestic authorities in their decisions relied on section 72 of the Notaries’ Act. It also served the aim of protecting the rights of others.
(c) Necessity of the interference in a democratic society
31. In determining whether the interference was “necessary in a democratic society”, the Court refers to the principles established in its case‑law. It has to consider whether, in the light of the case as a whole, the reasons adduced to justify that interference were relevant and sufficient for the purposes of paragraph 2 of Article 8 (see Bigaeva, cited above, § 32).
32. In this respect the Court notes that the applicant had attended the practical and theoretical professional training for public notaries for the period of two years and six months. During that training he had failed one out of two partial tests (see paragraph 3 above). The Warsaw and National Notary Chambers considered that he had failed to meet the legal requirements and consequently refused to issue the certificate in question (see paragraphs 5 and 6 above).
33. The applicant disputed with that assessment. In his view, he had completed the professional training as the partial exam was not a condition to obtain the certificate.
34. The Court observes that the applicant’s allegations were examined by the Administrative Courts of two instances. The Regional Administrative Court was of the view that the issuance of the certificate had not been conditional on succeeding the partial exams (see paragraphs 8-11 above). However, the Supreme Administrative Court reversed that approach. In an extensive reasoning the court explained that professional training could not be illusory and restricted to passive attendance of the training sessions. It further confirmed that under the relevant legal provisions the local notarial chambers had a competence to verify the trainees’ acquaintance with the training program by way of partial exams (see paragraphs 14 and 15 above).
35. The Court attaches importance to the fact that this approach was repeatedly confirmed in a number of the Supreme Administrative Court’s judgments given in similar circumstances. In all those judgments the Supreme Administrative Court held that failure to succeed the partial tests meant that the notarial training had not been completed (see paragraphs 23, 24 above).
36. The Court reiterates also in this context the most important role played by lawyers in the proper administration of justice and the need to maintain public confidence therein (see Kyprianou v. Cyprus [GC], no. 73797/01, § 173, ECHR 2005‑XIII).
37. Having regard to the above considerations and taking into account the wide margin of appreciation granted to the domestic authorities in issues relating to regulating access to legal professions (see Bigaeva, cited above, § 40), the Court is satisfied that the Polish courts’ procedural approach was reasonable in the circumstances and that in their decisions they have struck a fair balance between the interests of all those involved.
38. It thus follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
2. Article 14 of the Convention
39. The applicant also complained that the impugned decision was discriminatory, in breach of Article 14 read in conjunction with Article 8 of the Convention. He argued that he was in an analogous situation to trainees from other notary chambers (Łódź and Katowice), however, he was treated differently in that he had not been issued with the certificate in question.
40. The Court reiterates in this respect that the right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification or when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different (see, among many other authorities, Thlimennos v. Greece [GC], no. 25735/94, § 44, ECHR 2000 IV).
41. The Court observes that in the present case the Supreme Administrative Court noted a certain lack of coherence between the local chambers. At the same time it stressed that the under the relevant legal provisions the local chambers had been competent to verify the trainees knowledge by way of partial exams (see paragraph 15 above).
42. Even assuming, that the applicant could indeed be considered to be in a relatively similar situation to that of trainees from the Łódź and Katowice Chambers, the Court reiterates that the Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Thlimennos, § 44 and Bigaeva § 40, both cited above).
43. Consequently, noting the conclusions reached in the preceding paragraphs (see paragraphs 34-38 above), the Court finds that the decision in the present case falls within the State’s margin of appreciation. The applicant has not, therefore been treated differently compared to persons in a similar situation without an objective and reasonable justification.
44. It follows that the remainder of the application is manifestly ill‑founded and 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.
Done in English and notified in writing on 19 July 2018.
Abel Campos Aleš Pejchal
Registrar President
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