Unworthiness of a lawyer: the CCR closes the case because the challenged text had already fallen

A case opened in 2018 about exclusion from the legal profession ended without any examination of the merits, because the challenged rule had already fallen. The Constitutional Court dismissed as having become inadmissible the criticism directed at Article 14(a) of Law no. 51/1995 and dismissed the remaining criticisms as unfounded. It is the second decision published on the same day about the consequences that the law draws from a criminal case, after the one in which the Court held that a company cannot be excluded from a tender merely because it is under criminal investigation.

The case started at the Bacău Bar. The author of the exception was challenging in court a decision of the Council of the National Union of Romanian Bars and one of the Council of the Bacău Bar, both from 2018, by which his professional unworthiness had been established, plus several paragraphs of the Statute of the Legal Profession. The file had reached the High Court of Cassation and Justice, the Administrative and Tax Litigation Division, at the stage of the appeal on points of law.

The substantive argument was that exclusion from the profession, as a consequence of unworthiness, is an absolute and perpetual prohibition, disproportionate to the exceptional character of any restriction of a fundamental right. The second argument concerned the procedure: in administrative litigation there is no ordinary appeal, and the appeal on points of law is limited to the grounds for quashing set out in the Code of Civil Procedure, which, in the author’s view, does not secure an effective review of the judgment.

What it changes in practice

The first effect, and the one most easily misread, is that a solution of inadmissibility does not mean that the old text was constitutional. Quite the opposite. After the Court had been seised, but before this case was decided, by Decision no. 230 of 28 April 2022 the Court had already found that Article 14(a) of Law no. 51/1995, in the form criticised here, is unconstitutional. Under Article 29(3) of Law no. 47/1992, provisions already declared unconstitutional can no longer form the object of an exception, so this criticism was left without an object.

The second effect is the confirmation of the rule that remains in force today. Article 26(d) of Law no. 51/1995, according to which the status of lawyer ceases if the lawyer has been convicted by a final judgment of an act that makes him unworthy, is constitutional. The Court explains why: it is a referring provision, which does not itself establish what unworthiness means, but only regulates one of the situations in which the status of lawyer ceases. The concrete content comes from Article 14, rewritten in the meantime.

The third effect concerns any administrative litigation dispute, not only the legal profession. The judgment delivered at first instance can be challenged only by an appeal on points of law, within 15 days of service, and that appeal can be brought exclusively on the eight grounds of illegality set out in Article 488(1) of the Code of Civil Procedure. The Court confirms that this limitation is constitutional.

The fourth effect is a clarification that closes an entire line of argument. No provision of the Constitution guarantees a right to two levels of jurisdiction. That guarantee exists only in criminal matters, through Article 2 of Protocol No. 7 to the European Convention on Human Rights.

What has changed compared with the previous situation

The major change had already taken place, outside this case, and the decision merely records it. In 2017, by Decision no. 225, the Court had declared unconstitutional the phrase „liable to harm the prestige of the profession” in Article 14(a). The problem appeared afterwards: the legislature did not bring the text into line with the decision, and the courts went on applying it without the phrase that had been removed. The result was harsher than before, because unworthiness became applicable to any intentional offence, without any filter.

The Court said explicitly, in 2022, that this way of proceeding had generated a defect of constitutionality more serious than the initial one, and that the legislature had ignored the binding effects of the 2017 decision, laid down in Article 147(4) of the Constitution. It asked Parliament to set out precisely the offences whose commission leads to the loss of the status of lawyer.

Parliament complied through Law no. 32/2023, published in Official Gazette of Romania No. 36 of 12 January 2023, which expressly lists those offences. Consequently, the form criticised in the present case no longer exists, and anyone looking today at the conditions for unworthiness has to read the current text, not the one from 2018.

As regards the appeal on points of law, nothing has changed recently, but the decision recalls why things look the way they do. Under the old Code of Civil Procedure, Article 304¹ allowed the case to be examined in all its aspects. The new code turned this appeal into an extraordinary remedy, available exclusively on grounds of illegality, without exceptions. In administrative litigation, the legislature kept the appeal on points of law instead of the ordinary appeal, but left two guarantees untouched: the appeal suspends enforcement in all cases, and, where it is allowed, the court of appeal on points of law quashes the judgment and retries the case on the merits.

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