No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing)

Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Iain Thorburn Cameron;Luis López Guerra;Pere Pastor Vilanova

The applicant is a Swedish national born in 1950. He lives in Jordbro.

The applicant suffered for many years from, inter alia, pain in his back and legs and numbness in his right arm. He alternated between full and part-time sick leave from 1996 to 2001. In 1999 he received a partial early retirement pension and in 2002 a full disability pension.

In 2003 he applied for life annuity and alleged that his physical problems had been caused by his former employment as a driver (1973 to 1974), as a dairy worker (1974 to 1984) and as a food science technician (1984 to 1991). The Social Insurance Office (Försäkringskassan) appointed an in-house specialist in orthopaedic surgery who, in a written statement, concluded that there was not a high degree of probability (hög grad av sannolikhet) that any harmful element in the applicant’s former employment had caused his problems.

On 17 May 2005, after having held an oral hearing, the Social Insurance Office rejected the application. Referring to, inter alia, the specialist statement by the insurance doctor, it was held that the applicant had not been subject to any harmful influences which, with a high degree of probability, could have caused or aggravated his problems.

The applicant appealed to the County Administrative Court (förvaltningsrätten) of Stockholm. On 19 April 2007 the court, after having held an oral hearing, upheld the Social Insurance Office’s decision in full. The court found that, although it was scientifically known that employees in the food industry had a statistically high risk of injury, the circumstances in the applicant’s case had to be taken into account. The applicant’s back problems had appeared after barely two years in the industry and he suffered from degenerative changes to his back. Against that background, the medical investigation and other material did not adequately support the conclusion that the applicant, in his work, had been subject to any harmful influences which, with a high degree of probability, could have caused or aggravated his problems.

Upon further appeal to the Administrative Court of Appeal (kammarrätten) of Stockholm, the applicant submitted, inter alia, a medical statement (epikris) issued in February 2008 by the Centre of Public Health, Occupational and Environmental Medicine (Centrum for folkhälsa, arbets och miljömedicin). According to the medical statement, there were reasons to believe that the applicant’s work had caused his problems.

In a written statement to the appellate court, the Social Insurance Office questioned the conclusions in the medical statement as they were based on information about exposure which was to a high degree uncertain. Furthermore, there were medical records from 1997 in which the applicant was held to be fully able-bodied and in which it was noted that no somatic evidence had been found in support of the applicant’s symptoms.

On 17 March 2008, the Administrative Court of Appeal granted leave to appeal. The applicant requested an oral hearing in the case but, on 5 September 2008, the court rejected the request. It referred to the nature of the case and to the fact that an oral hearing had been held before the County Administrative Court. The applicant was given the opportunity to submit further observations.

In a judgment of 27 October 2008, the Administrative Court of Appeal upheld the lower court’s judgment in full. It first gave an account of the parties’ submissions and the evidence relied upon, including the medical statement of February 2008, and then stated the following reasons:

“The medical and other evidence in the case does not demonstrate that the applicant has been exposed to any such harmful influences in his work which could, with a high degree of probability, have caused his problems. His back-related and other problems can thus – as has been found also by the County Administrative Court and the Social Insurance Office – not be defined as a work-related injury. [The applicant] is therefore not entitled to life annuity according to the [Work Injury Insurance Act]. The appeal must consequently be rejected.”

The applicant appealed to the Supreme Administrative Court (Högsta förvaltningsdomstolen). He complained of the lack of reasoning in the Administrative Court of Appeal’s judgment and argued that that court’s refusal to hold an oral hearing had infringed his right to a fair trial within the meaning of Article 6 of the Convention.

On 4 August 2009, the Supreme Administrative Court refused leave to appeal.

On 3 February 2010 the applicant lodged an application with the Court, complaining that his right to a fair trial under Article 6 of the Convention had been infringed because the Administrative Court of Appeal had refused to hold an oral hearing and its judgment had not been sufficiently reasoned.

This application was declared inadmissible by the Court on 21 May 2013 for non-exhaustion of domestic remedies. The Court found that the applicant had failed to lodge a claim with the Chancellor of Justice (Justitiekanslern) or the ordinary courts to seek compensation for the alleged breaches of the Convention (Ruminski v. Sweden (dec.), no. 10404/10, 21 May 2013).

Consequently, on 30 December 2013, the applicant lodged a claim for compensation for the alleged breaches of the Convention with the Chancellor of Justice. He argued that the Administrative Court of Appeal’s lack of reasoning, as well as its refusal to hold an oral hearing, had infringed his right to a fair trial within the meaning of Article 6 of the Convention. He requested 50,000 Swedish kronor (SEK) for non-pecuniary damage.

The Chancellor of Justice communicated the case to the Administrative Court of Appeal which submitted that its handling of the case had been in accordance with domestic law as well as the Convention. In response, the applicant maintained, and developed the grounds for, his claim.

On 15 January 2015 the Chancellor of Justice rejected the applicant’s claim. As concerns the lack of an oral hearing, the Chancellor of Justice noted that the Social Insurance Office and the County Administrative Court had held an oral hearing and consequently, in accordance with the Court’s case-law, a less strict standard applied to the requirement to hold a hearing before the appellate court. Thus, in view of the character of the case and the fact that the applicant had been given the opportunity to finalise his submissions in writing and the court had had access to substantial written evidence, the Chancellor of Justice concluded that there had been no breach of the Convention in this respect.

As concerns the Administrative Court of Appeal’s alleged lack of reasoning, the Chancellor of Justice referred extensively to the Court’s case law on this matter and then made the following evaluation. The Administrative Court of Appeal had, in its judgment, accounted for the applicant’s arguments and the new evidence he had submitted before it. It had further accounted for the considerations and conclusions drawn from the evidence submitted by the parties, namely, that the investigation in the case did not demonstrate that the applicant had been exposed to any such harmful influences in his work which, with a high degree of probability, could have caused his problems. Thus, the Chancellor of Justice found that the Administrative Court of Appeal had taken a stance on the central and decisive question in the case, that is, whether the applicant had been exposed to harmful influences in his work. While the Chancellor noted that it would have been preferable, for pedagogical reasons, for the court to have given clearer grounds for why the applicant’s evidence had not been sufficient, she concluded that the reasoning was not so deficient that the applicant’s right to a fair trial under Article 6 of the Convention had been infringed.

At the relevant time, provisions on work injuries were set out in the Work Injury Insurance Act (Lag (1976:380) om arbetsskadeförsäkring), which covered all people working in Sweden. A person whose ability to earn an income had been impaired due to a work-related injury was in some specified situations eligible for life annuity (Chapter 4, section 1). The term “work-related injury” referred to injuries resulting from accidents or other harmful effects at work. “Other harmful effect” meant the influence of a factor that with a high degree of probability might cause the kind of injury suffered (Chapter 2, section 1(1)). If an insured person had suffered an accident or another harmful effect, the injury was to be considered to have been caused by the harmful effect, if that causal link was highly probable (Chapter 2, section 2). The standard of proof was somewhat mitigated on 1 July 2002, but that amendment did not apply to the applicant’s case.

The administration of justice before the administrative courts is regulated by the Administrative Court Procedure Act (Förvaltningsprocesslagen, 1971:291). According to section 30 of the Act, the determination of a case by a court must be based on what is contained in the documents and what has otherwise been established in the case. The decision must state the reasons that determined the outcome.


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Iulia Motoc;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer

The applicant was born in 1986 and lives in Botârlău.

On 23 February 2007 X, a plain-clothes police officer from the Buzău County police organised crime unit, approached the applicant in a nightclub. According to a report drafted on 1 March 2007, the meeting had been planned in order to verify information received by the police that the applicant might have been dealing drugs. The report mentioned that X had discussed with the applicant, who claimed that he could get drugs and promised to call with more details. In a second report drafted on 14 April 2007 it was stated that the applicant had called X to ask whether he was interested in buying 2,000 ecstasy tablets at a cost of 10 euros (EUR) each.

On 18 April 2007 a prosecutor from the Buzău County department for the investigation of organised crime (“the organised crime department”) opened a criminal investigation against the applicant on suspicion of drug trafficking. A request to intercept his telephone conversations and make ambient voice recordings was authorised by a judge of the Buzău County Court.

On the same date the prosecutor from the organised crime department authorised the use of X as undercover police agent in order to determine the facts of the case, identify the offenders and obtain evidence. The prosecutor justified the issuing of the authorisation on the basis that there was reason to believe that the applicant was about to commit a drug trafficking offence.

In a report dated 17 May 2007 the chief of the Buzău County police organised crime unit stated that X had called the applicant several times in April and May in order to enquire when the transaction might take place. The report also mentioned that the applicant had replied on several occasions that he was not in possession of the drugs, which were to be brought into the country by friends of his who had not yet returned from abroad.

In the early evening of 19 July 2007 the applicant called X and set up a meeting for later that evening. He and a friend, G.G., picked up X by car. X was accompanied by Y, a colleague in plain clothes. The four of them drove to a petrol station where a meeting had been arranged with C.A.O. to buy drugs. The applicant and Y went inside the petrol station while X remained outside and talked to C.A.O. As the deal got underway in the car park of the petrol station, the case prosecutor and ten police officers suddenly intervened and arrested the applicant, C.A.O. and G.G. In the car driven by C.A.O. the police found 742 ecstasy tablets. The offence report drafted on the spot by the police was signed by everyone, including the applicant, without any objection. The police operation was recorded on video.

On 25 October 2007 the applicant was indicted with C.A.O. and G.G. for trafficking “high risk” drugs.

On 17 January 2008 the applicant and C.A.O. testified before the Buzău County Court. The applicant averred that he had acted as an intermediary for the meeting and subsequent deal between C.A.O. and X because the latter had asked him whether he could get drugs for him. Moreover, X had set the price for the drugs. C.A.O. stated that the drugs found on him had been for his own personal use and that he had had no intention of selling them.

The applicant’s lawyer argued before the court that the applicant had in fact been incited by X to act as an intermediary in the drug deal and requested that X be called to give evidence, along with two witnesses in the applicant’s defence. The court allowed the request.

On 14 February 2008 the court heard evidence from X, G.C. and one of the witnesses proposed by the applicant who appeared in court. X stated that the applicant had called him in order to arrange the drug deal without any incitement on his part. The applicant’s lawyer had the opportunity to cross-examine X. He asked whether the reports of 1 March and 14 April 2007 had been signed by him and whether the criminal investigation had already been open when he had been authorised to investigate undercover. The two questions were disallowed by the court because they were considered an attempt to disclose X’s identity.

The Buzău County Court gave judgment on 22 February 2008. It convicted the applicant of drug trafficking and sentenced him to six years’ imprisonment. The conviction was based on the reports of 1 March and 14 April 2007 and the offence report of 19 July 2007 (see paragraphs 6 and 10 above), as well as on transcripts of the applicant’s telephone conversations with X, ambient recordings of discussions between X and C.A.O. and the in-court testimonies given by the applicant, the codefendants and X. The court considered that the applicant’s allegations that he had been incited by X were clearly disproved by the abovementioned evidence taken as a whole.

The applicant appealed against the judgment. He alleged that X had exceeded his authority and that Y should have also been called to testify in court. He also claimed that X had incited him to commit the offence under coercion and that the first-instance court had failed to respond appropriately to his arguments on that issue.

On 26 May 2008 the Ploieşti Court of Appeal rejected the appeal. In reply to the applicant’s arguments, the court held that the authorisation and actions of the undercover police officer had been in accordance with the law. The statement of Y was irrelevant to the case since he had not directly witnessed the deal. The court considered that the applicant had not been incited by X since it was apparent from the evidence in the file that he had called the officer on several occasions and had planned the meeting of 19 July 2007 (see paragraph 10 above).

The applicant lodged an appeal on points of law (recurs), reiterating his previous arguments.

In a final judgment of 22 October 2008 the High Court of Cassation and Justice dismissed the appeal on points of law. Basing its findings on the reports of 1 March and 14 April 2007 (see paragraph 6 above), the court considered that there had been serious reason to suspect that the applicant would commit a criminal offence at the time of authorisation of the covert operation. It further noted that it was apparent from the documents in the file that X had acted lawfully. In addition, the information collected by X and the applicant’s active participation in the crime in question were supported not only by the police reports, but also by transcripts of the telephone conversations that the applicant had with C.A.O. and X. The court stated that it was clearly apparent from those transcripts that the applicant had initiated calls to X on two occasions in order to act as an intermediary in the drug deal. It also noted on this point that the applicant and the other co-defendants had signed the offence report without any objection (see paragraph 10 above). The applicant’s allegations concerning the unlawfulness of the covert operation and the police incitement were therefore considered to be ill-founded.


André Potocki;Angelika Nußberger;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary

The applicant, the Zentas Loginas Muzejs foundation (hereinafter “the applicant organisation”) is a non-profit organisation registered in Latvia. It was represented before the Court by the chairperson of the organisation’s board, Mr P. Ērglis.

The Latvian Government (“the Government”) were represented by their Agents, Ms I. Reine and later Ms K. Līce.

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant organisation was created in 1995 with the purpose of preserving and promoting the artistic heritage of two late Latvian artists, Zenta Logina and her sister Elīze Atāre. Their complete body of work comprises over 800 art pieces created using different techniques over a period of fifty years. After the two artists died the entire collection of their art works remained in a six-room apartment located in the centre of Riga where the two sisters had lived (“the contested apartment”). At that time the apartment belonged to the Riga municipality and the applicant organisation’s intention was to acquire it in order to create a memorial museum there.

On 16 October 1995 the applicant organisation wrote to the Culture, Art and Religious Affairs Committee of Riga City Council outlining its intentions and requesting the committee’s support for the creation of the memorial museum in the contested apartment. Between February and September 1996 the State Inspectorate for Heritage Protection, the Minister of Culture, and the Artists’ Union of Latvia each wrote to Riga City Council confirming the importance of the collection and expressing their support for the creation of the memorial museum.

On 12 December 1995 the Culture, Art and Religious Affairs Committee of Riga City Council invited the Governing Board of the Riga Centre District (hereinafter “the Governing Board”) – the local executive body – to investigate and determine ways of supporting the initiative to place the contested apartment at the applicant organisation’s disposal (atstāt rīcībā) in order for it to create a memorial museum of the two artists’ work. On 4 January 1996 the Apartment Committee of Riga City Council (hereinafter “the Apartment Committee”) also supported the same proposition.

On 29 May 1996 the Cabinet of Ministers issued order no. 198 whereby several apartment houses in Riga were not to be privatised but were to be retained as the property of the State. Possession (valdījums) of these apartments was to be transferred to the State Real Estate Agency, which was then to enter them in the land register as State-owned property. The building in which the contested apartment was situated was listed in this order.

On 8 July 1996 the manager of the contested apartmenta municipality-owned enterprise that was overseen by the Governing Boardinformed the Apartment Administration of the Property Department of Riga City Council (hereinafter “the Apartment Administration) that five rooms in the contested apartment had become available for rent. On 23 July 1996 the Apartment Administration issued recommendation no. 1202 authorising the manager of the contested apartment to rent the five rooms available to a certain V.B.S. and her family. According to the Government, V.B.S. had been registered to receive housing aid from municipal funds since 21 March 1995. The applicant organisation denied that V.B.S. had ever been registered for housing aid and argued that recommendation no. 1202 had been unlawful.

On 5 August 1996, on the basis of recommendation no. 1202, the manager of the contested apartment concluded a rental agreement with V.B.S. for an indefinite period of time.

On 27 August 1996 Culture, Art and Religious Affairs Committee of Riga City Council expressed its dissatisfaction with the fact that the Governing Board had not informed the Apartment Administration of the decisions adopted by the two Riga City Council committees. It decided that the Apartment Administration ought to annul the recommendation that the contested apartment be rented out to V.B.S. and to examine again the possibility of excluding the said apartment from the residential fund and allocating it to the applicant organisation. In addition, it decided that the Apartment Administration should open an inquiry into why the decisions taken by the Riga City Council committees had not been examined.

On 5 September 1996 the Apartment Committee declared that recommendation no. 1202 had become invalid and that the declaration of V.B.S.’s and her family’s residence in the contested apartment had been annulled.

On 24 September 1996 the Audit Commission of Riga City Council, having carried out an examination, concluded that the Governing Board had not responded to numerous letters sent by different persons and institutions (the Ministry of Culture, a member of parliament, the Art Academy of Latvia, the Artists’ Union of Latvia, and the applicant organisation) concerning the artistic heritage of the late artists. Despite the fact that the Governing Board had been fully aware of the situation, the manager of the contested apartment had not informed the Apartment Administration about the substantial artistic collection located in that apartment, thereby misleading it. The Audit Commission proposed to annul, under a procedure set out in law, the rental agreement concluded with V.B.S. It also suggested that the issue regarding the housing of the art collection should be resolved by Riga City Council and the State Real Estate Agency, acting together.

On 10 October 1996 the Apartment Committee (on the grounds that the manager of the contested apartment had provided false information to the Apartment Administration) decided to annul the allocation of the apartment to V.B.S. and her family and to place it at the applicant organisation’s disposal. V.B.S.’s family was to be allocated another apartment. It also invited the director of the Property Department of Riga City Council to hold responsible those who had misinformed the Apartment Administration.

The parties disagreed on the nature of the decisions taken by the two Riga City Council committees. The Government contended that these decisions had been of a purely recommendatory nature, as the committees were not competent to vest any rights in the applicant organisation or to adopt legally binding decisions, that being the exclusive competence of Riga City Council. The committees had merely consultative functions and were responsible for preparing issues to be examined and decided upon by Riga City Council. The applicant organisation disagreed. It contended that, under the Rules of the Riga Municipality, the Riga City Council committees had the right to instruct officials of the Riga municipality and its institutions. Hence, the decisions of the two committees had to be complied with.

On 17 October 1996 the State Real Estate Agency informed the applicant organisation that on 1 September 1996 it had taken possession (pārņēmusi valdījumā) of the building in which the contested apartment was situated. It drew attention to recommendation no. 1202 and the rental agreement that had been concluded with V.B.S. on 5 August 1996. The Agency noted that it was bound by the rental agreements in force. It advised that with regard to the issue of using the contested apartment for the foundation’s needs the applicant organisation would need to address the Apartment Administration, which had issued the recommendation.

On 23 December 1996 the State Real Estate Agency invited the applicant organisation to move the art collection from the contested apartment, noting that it had no legal grounds to use it. It also stated that it had not received a response from the applicant organisation concerning the allocation of different premises. Referring to V.B.S., it added that a person who had “all legal rights to said apartment” had declared her address there. The Agency also noted that in the event of the applicant organisation’s failure to vacate the contested apartment it would be forced to evict the applicant organisation therefrom. On 7 January 1997 and 22 January 1997 the State Real Estate Agency wrote further letters offering the applicant organisation different premises for the housing of the art collection and warning it that in the event of failure to vacate the apartment the property belonging to the applicant organisation contained therein would be moved to different premises. The letter of 22 January 1997 also noted that the lawful tenant wished to start renovating the apartment. On 31 January 1997 there was further correspondence between the State Real Estate Agency and the applicant organisation concerning possible rental fees of the different premises already offered to the applicant organisation and additional premises that could be made available to the applicant organisation.

In the light of this correspondence the Government contended that offers to move the art collection to different premises had been made to the applicant organisation repeatedly but that the applicant organisation had failed to reply. In response, the applicant organisation asserted that it had visited all the premises offered; however, none of them had been suitable for the needs of the art collection or a museum.

On 4 February 1999 the manager of the contested apartment, on the basis of an authorisation issued by the State Real Estate Agency, concluded a new rental agreement with V.B.S.

By virtue of amendments dated 8 March 2000 to order no. 198 of the Cabinet of Ministers (see paragraph 7 above) the building in which the contested apartment was located was excluded from the list of properties that were not subject to privatisation.

On 25 July 2000, the Central Privatisation Commission of Residential Buildings transferred the ownership rights to the contested apartment to V.B.S. prior to the privatisation of the residential building (nodot īpašumā līdz dzīvojamās mājas privatizācijai). On 4 February 2002 the Central Privatisation Commission of Residential Buildings, on the basis of the Law on the Privatisation of State and Local Self-Government Apartment Houses (Par valsts un pašvaldību dzīvojamo māju privatizāciju), sold the apartment to V.B.S.

By a judgment of 2 October 1998 A.N. was recognised as the inheritor of the collection of art works of Zenta Logina and Elīze Atāre.

On 26 October 1998 A.N. instituted civil proceedings challenging the rental agreement of 5 August 1996 that had been concluded with V.S.B and requesting that the privatisation of the contested apartment be discontinued.

On 20 July 1999 the Riga City Centre District Court terminated those civil proceedings on the grounds that they had been brought by a person who had had no standing. In particular, the court noted that it had received no evidence that A.N.’s civil rights had been infringed.

On 13 April 2000 the Riga Regional Court upheld this decision. It established that prior to her death Elīze Atāre had rented the contested apartment, which had not been privatised. The apartment had been in the possession of the Riga municipality. The rental agreement concluded with V.B.S. had not affected A.N.’s rights to her inheritance. The court considered that the arguments raised concerning the rights of other persons (including the rights of the applicant organisation) were not relevant as the civil claim had only been brought in the name of A.N. Further, the court noted that under domestic law rental agreements could only be challenged by landlords, tenants or members of a tenant’s family. Neither the State Real Estate Agency, nor V.B.S. or members of her family were contesting the tenancy agreement. Besides, no competent institution of the Riga municipality had ever concluded a rental agreement with A.N. Hence, the appeal court agreed with the conclusion that the proceedings had been brought by a person who had had no standing.

On 28 June 2000 the Senate of the Supreme Court upheld this decision on the same grounds. It also noted that the question of the protection of the artistic heritage of the late artists did not fall to be decided in judicial institutions.

In October 2000 A.N. donated the art collection to the applicant organisation.

In November 2001 the applicant organisation addressed the Prosecutor General’s office requesting it to examine whether V.B.S. had acquired the right to rent the contested apartment lawfully. According to the Government, on 19 November 2001 the prosecutor’s office attached to the Riga Regional Court (“the Prosecutor’s Office”) refused to lodge a civil claim contesting the rental agreement because it had concluded that there was no dispute about the applicant organisation’s title to the collection of art works and that the fact the collection was stored in the contested apartment did not vest any right to the mentioned premises in the applicant organisation. Subsequent appeals to the Prosecutor General’s Office and the Prosecutor General were dismissed on 11 January and 3 April 2002 respectively.

In relation to this point the applicant organisation submitted to the Court two letters prepared by the Prosecutor’s Office. One letter, dated 19 November 2001, stated that the Prosecutor’s Office had examined the applicant organisation’s request and had concluded that there had been no breaches of law meriting the bringing of a civil claim. However, the other letter, dated 12 November 2001, bearing the same number and the signature of the same official, stated that the Prosecutor’s Office had examined the applicant organisation’s request and had prepared a civil claim, to be brought before the Riga Regional Court. It also noted that on 18 October 2001 this claim had been submitted to the relevant department of the Prosecutor General’s Office for its approval. According to the applicant organisation, the existence of the two contradictory letters and the fact that the claim was never brought proved that the Prosecutor’s Office had not acted independently and impartially and that its decision-making had been influenced by other persons with an interest in the outcome of this case. In particular, the applicant organisation noted the political influence of V.B.S.’s son-in-law, who had been a member of parliament at the time in question.

On 21 August 2004 V.B.S. died.

On 5 January 2005 the applicant organisation lodged a claim requesting the annulment of the following: the rental agreement that had been concluded with V.B.S. on 5 August 1996; the decision of 25 July 2000 by the Central Privatisation Commission of Residential Buildings transferring the ownership rights to the contested apartment prior to the privatisation of the residential building in which it was located, to V.B.S.; the purchase agreement concluded with V.B.S. on 4 February 2002; and the entry in the land register concerning V.B.S.’s property rights over the contested apartment. The applicant organisation also requested the recognition of its right to use the contested apartment. In subsequent submissions the applicant organisation clarified that it did not request the recognition of its own property rights over the contested apartment and indicated that V.B.S.’s heir, J.L., should be one of the defendants in these proceedings.

On 20 April 2005 the Riga Regional Court opened proceedings. On 7 October 2005 it decided to terminate the proceedings on the grounds, inter alia, that the applicant organisation had had no standing to bring the above–mentioned claims. In particular, the applicant organisation had contested a rental agreement and a purchase agreement to which it was not a party.

The applicant organisation lodged an ancillary complaint with the Civil Cases Chamber of the Supreme Court. On 16 December 2006 the Civil Cases Chamber upheld the decision of the Riga Regional Court. It noted that the applicant organisation had never been a party to the rental agreement in question or a beneficiary of the privatisation proceedings concerning the contested apartment.

On 27 December 2005 the applicant organisation lodged a further ancillary complaint with the Senate of the Supreme Court. The applicant organisation reiterated that the privatisation of the contested apartment had been unlawful and had been carried out in bad faith. It also argued that there had been no legal grounds for the termination of the proceedings. The courts had indicated no legal basis for their conclusion that a person who was not a party to a rental agreement but whose rights to use the rented premises in question had been affected had no right to bring a claim to protect its rights. The applicant organisation, insofar as relevant, relied on sections 1, 1403, 1415, 2004 and 2006 of the Civil Law; sections 1 and 127 of the Civil Procedure Law; and sections 13, 72 and 73 of the Law on the Privatisation of State and Local Self-Government Apartment Houses. The applicant organisation contended that none of these provisions prevented it from bringing its claims.

On 8 February 2006 the Senate of the Supreme Court upheld the decision to terminate the proceedings. It noted that section 127 of the Civil Procedure Law defined the right to bring a claim as the possibility for an interested person to bring proceedings in order to protect his or her infringed or contested rights. Accordingly, a person could benefit from court protection if his or her claim was connected with an interference with that person’s rights. Moreover, when deciding on a person’s right to bring proceedings, a court had to take into account the fact that nobody had the right to interfere in another person’s civil-law relationships if those relationships did not affect them (either legally or in practice). The court continued:

“The Senate considers that the [appeal] court has justly found that because the Zentas Loginas Muzejs foundation is not a party to the rental agreement, it cannot contest it. To consider that the interest of a third party – which the applicant is with regard to the rental agreement – in the annulment of a contract (and hence the restoration of the previous situation) is justified, it is necessary to establish that as a result of the annulment of that agreement an interference with that person’s rights would be eliminated. However, in the present case, given that the contested apartment has never been in the possession (valdījums) of the Zentas Loginas Muzejs foundation one cannot speak of an interference with the plaintiff’s rights. The fact that the collection of art works is situated in the disputed premises, which have the legal status of residential premises, contrary to the opinion expressed in the ancillary complaint, does not grant the Zentas Loginas Muzejs foundation the right to acquire possession of the apartment.

As correctly indicated by the [appeal] court, the plaintiff’s right to contest the privatisation and J.L.’s property rights should be assessed within the same context. An object such as the apartment owned by J.L. can only be claimed from his [that is to say J.L.’s] possession by its owner [by lodging] a property claim (section 1041 of the Civil Law), which serves as an owner’s protection against the illegal holding of a possession (valdījuma prettiesīgu aizturējumu) of its immovable property. In the present case the aforementioned ground for contesting the defendant’s property rights cannot be established because the plaintiff’s right to possess the contested object has not been established in a procedure set by law, which, in turn, precludes the reason to talk about interference with rights, as they have not been acquired.”

Sections 13, 14, 19, and 20 with regard to different types of situations provide that all rented apartments shall be offered for privatisation to their tenants and their family members. Such persons can acquire title to a rented apartment if no proceedings have been brought requesting the termination of the rental agreement in question and the eviction of the tenants. Under section 40(1), the relevant privatisation commission decides on whether to conclude a purchase agreement with a person who has applied for privatisation. On the basis of this decision, the privatisation commission then concludes a purchase agreement. Section 48(1) provides that only the person who is registered in the land register in respect of a particular property can be recognised as the owner of the privatised object.

Under section 29(1), rented apartments are offered for privatisation after the privatisation of the residential building in which they are situated has commenced. Nonetheless, the Law also sets out the procedure whereby the ownership rights to an apartment can be transferred to tenants prior to the privatisation of the residential building. The decision on whether to transfer the ownership rights to an apartment prior to the privatisation of the residential building is taken by a privatisation commission upon a request of a tenant (section 733). The name of the person who has acquired ownership rights to an apartment prior to the privatisation of the relevant residential building shall be registered in the cadastral register and from the moment of this registration that person shall be recognised as the owner of the apartment (sections 738(1) and 739(1)). However, under section 739(8), after the privatisation of a residential building has commenced, the person who acquired the ownership rights to an apartment prior to the privatisation of the relevant residential building still has to conclude a purchase agreement, as mentioned in section 40.

Section 72(1) provides that a court is competent to examine disputes, inter alia, concerning the rights of a beneficiary of privatisation to privatise an apartment, the registration of the privatised object in the land register, and other disputes which may arise in the course of the privatisation of residential buildings and which do not fall to be examined by local municipalities. Under section 73, the privatisation of an apartment shall be declared unlawful in the following circumstances: the apartment has been privatised in a manner disregarding the sequence of steps set out in this Law; the person concerned has privatised a previously rented apartment without having first informed his or her family members thereof; or other requirements set out in this Law or rules of the Cabinet of Ministers adopted on the basis of this Law have been disregarded.

Section 1 states that rights shall be used and obligations shall be fulfilled in good faith.

Section 876 provides that possession of property is actual control over property conforming to ownership rights. It exists where tangible property is in actual fact under the total control of a person and, in addition, that person demonstrates the intention to act with the property in a similar manner as that of an owner.

Under section 911, from possession arises the right to protect the existing possession and to renew a possession that has been taken away. These rights apply in respect of every possession, regardless of whether such possession is legal or illegal or is based on good faith or bad faith. Section 912 expressly stipulates that every possession is protected by law.

Section 1041 provides that an owner may reclaim his or her property from any third person that holds possession thereof by bringing an ownership claim.

Section 1403 defines a legal transaction as an action, carried out in a permitted manner, which establishes, alters or terminates lawful relationships. Section 1415 further states that an illicit or indecent action, the purpose of which is contrary to religion, laws or moral principles, or which is intended to circumvent the law, may not be the subject matter of a legal transaction; such a transaction shall be void.

Section 1537, as worded at the relevant time, provided that if a contract was entered into between absent parties, it should be regarded as definitively concluded from the moment at which the party to whom the offer was made announced to the offering party his or her unconditional acceptance.

Section 2004 stipulates that a purchase agreement shall be considered to have been entered into when both parties have agreed on the subject of the purchase and the purchase price. Under section 2006, if both parties, neither of the parties, or only the purchaser knew that it was not permitted to alienate (atsavināt) the object that was being sold, then the contract shall be void. However, if only the seller had that knowledge, then the contract shall remain in effect and the seller must compensate the purchaser for any losses [incurred as a result of the sale].

Section 1 grants every natural and legal person the right to protect in court their infringed or contested civil rights and those of their interests that are protected by law. A person who has brought a case to court has the right to have his or her case examined in accordance with the procedures laid down by law.

Section 127(1) provides that any person, natural or legal, who has reached the age of majority and has capacity to act may bring a claim in court in order to protect any of their civil rights that have been infringed or contested. Section 127(3) states that a prosecutor may bring a claim in order to protect the infringed or contested civil rights of other persons.

Pursuant to section 132(1)(2), a judge shall refuse to entertain a claim if it has been brought by a person who does not have standing. Pursuant to section 223(1)(2), a court shall terminate proceedings if the claim in question has been lodged by a person who has no standing.

Section 22 states that the work of the city council takes place in meetings and in the permanent committees.

Section 33 provides that during its meetings the city council examines the draft decisions, which have been proposed by the chairperson, the permanent committees or the members of the city council. The draft decisions shall be submitted to the chairperson, who shall decide which permanent committee will assess the draft.

Under section 50, the permanent committees have the following functions: 1) to prepare questions for examination in the city council meetings; 2) to give their opinion concerning matters that are within its competence; 3) in the procedure set out in the rules of the municipality, to oversee the work of municipality institutions and enterprises; 4) to examine the budget proposals of the municipality institutions and enterprises and to submit them to the finance committee; 5) to approve and control the expenditure estimates of the municipality institutions and enterprises; 6) to carry out other obligations in accordance with the rules of the municipality.

In accordance with Rules 2, 3 and 7 of the Rules of the Riga Municipality, as in force from 13 December 1994 until 20 August 1997, the Riga City Council was to create permanent committees from amongst its members. The permanent committees were to prepare issues for examination in the Riga City Council meetings and their work was to be coordinated by the Presidium of the City Council.

Rule 28 stated that the Riga City Council committees should: 1) prepare questions for examination in City Council meetings; 2) give opinions regarding questions falling within its competence; 3) oversee the relevant municipal institutions and enterprises; 4) examine the budget proposals of the municipal institutions and enterprises that were under its supervision and oversee the implementation of the budget; 5) carry out other tasks in accordance with these Rules and the decisions of the City Council.

Rule 36 stipulated that the Culture, Art and Religious Affairs Committee was to oversee the Culture Administration.

Rule 38 stated that the Apartment Committee was to participate in the development of the programme for the construction of new apartments and oversee the distribution and exchange of apartments. It was to oversee the apartment divisions of the city districts and suburbs, as well as the Apartment Division and the Construction Division of the Immovable Property Administration.

Rule 41 detailed the rights of the permanent committees when carrying out their supervision tasks. In particular, they had a right to: 1) check the paperwork of the municipality officials, institutions and enterprises and receive copies of such paperwork that were necessary for deciding on issues raised in the committee meetings; 2) receive the necessary documents and explanations from the City Council officials, municipal institutions and enterprises with regard to questions that were within the committee’s competence; 3) charge the officials of those institutions with carrying out preparatory tasks necessary for submitting draft decisions to the City Council; 4) involve in its work, in a consultative function, experts from the relevant fields.

Under Rule 42, decisions as to how to resolve disputes between the permanent committees and the municipality officials, institutions and enterprises were to be taken by the chairperson of the City Council or the Presidium of the City Council.

In accordance with Rules 52 and 53, following examination by the committees each draft decision was to be examined by the Presidium of the City Council. If the Presidium had objections to the draft decision, it could return it to the committees for another examination. The draft decisions that had been accepted by the Presidium were to be included in the agenda of the next City Council meeting for their adoption.

Section 4(2) determines who can be a tenant or a subtenant under a rental agreement concerning residential premises. It provides that any natural person who lives in Latvia permanently or who has received a residence permit in a procedure set out in law may be a tenant or a subtenant in such agreements.


Aleš Pejchal;Armen Harutyunyan;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano

The applicant, Mr Carlo Biagioli, is an Italian national, who was born in 1969 and lives in San Marino. He was represented before the Court by Mrs A. Mascia, a lawyer practising in Verona, Italy.

summarised as follows.

The applicant is the son of the Commander in Chief of the San Marino Police. He was a lawyer and notary by profession before being disbarred (radiato) as a result of criminal proceedings which were instituted in 2005 against both father and son for making false declarations in public documents (reato di falso in atto pubblico) under Articles 73 and 295 of the Criminal Code on 1 March 2002. It was alleged that they had altered the content of the police daily record (foglio di servizio) of 16 June 1999 by adding that they had carried out a check-up on a specific car and person, whereas such a check-up had never been undertaken.

By a judgment of 4 April 2012 no. 81/2012, filed in the registry on 11 May 2012, both the applicant and his father were found guilty. The applicant was sentenced to two years and six months’ imprisonment and prohibited from holding public office for fifteen months.

By judgment no. 154/2012 of 28 September 2012 the Appeal Court upheld the first-instance judgment, reducing, however, the punishment. The applicant was sentenced to two years’ imprisonment and prohibited from holding public office for a year. His sentence was suspended for two years.

More factual details about the criminal proceedings can be found in Biagioli v. San Marino, (dec.), no. 8162/13, 8 July 2014.

In the meantime on 21 August 2005, the San Marino Chamber of Advocates and Notaries (OAN) (hereinafter “the CAN”) had asked the applicant to submit an explanation as to the facts surrounding the criminal proceedings. By a letter of 5 September 2005, the applicant informed the CAN that no charges had been issued against him and that any impugned conduct had not been in connection with the carrying out of his profession.

On 3 April 2007, following the issuance of a bill of indictment against the applicant, the CAN once again asked him for explanations, and the applicant submitted the relevant bill of indictment.

Following the delivery of the first-instance judgment, on 12 April 2012 the CAN requested the applicant to provide a copy of the operative part of the judgment. The applicant complied with the request on 18 April 2012, also submitting a copy of his appeal application.

On 4 May 2012 the applicant was notified that the CAN was instituting disciplinary proceedings against him in respect of a breach of Article 9 of legislative decree no. 56 of 26 April 1995, as well as Article 45 (1) of law no. 28 of 20 February 1991 (see relevant domestic law below).

At the hearing of 22 June 2012, as well as in his written submissions, the applicant argued that the disciplinary action against him was timebarred. In any event he requested the suspension of any sanction against him until the judgment finding him guilty had become final.

On 5 July 2012, the CAN rejected his argument concerning prescription but suspended the disciplinary proceedings until the criminal proceedings had become final.

On 19 July 2012, the applicant challenged that decision before the National Commission of Liberal Professions (libere professioni) (CNLP), hereinafter “the Commission”.

On 12 September 2012 the Commission rejected the applicant’s challenge concerning prescription on the basis that the decision of 5 July 2012 was not a decision on the merits, namely as to whether or not to apply the disciplinary measure, and thus was not subject to an autonomous challenge. Such a challenge could be raised in the context of an appeal in the event of the CAN ordering a disciplinary measure.

On 3 October 2012 the applicant challenged the decision of the Commission.

Eventually, by a judgment of 4 March 2013 the Administrative Court rejected the applicant’s challenge and upheld the Commission’s decision.

Following the Court of Appeal judgment of 28 September 2012 in the criminal proceedings against the applicant, on 5 October 2012 the CAN informed the applicant that disciplinary proceedings were to be continued and that he was to appear at a hearing.

Hearings in the presence of the applicant and his lawyer took place on 15 and 17 October 2012, and written submissions were also filed. The applicant made submissions concerning, inter alia, the invalidity of the CAN owing to its constitution; the generic nature of the accusation; the fact that the impugned conduct had taken place outside the ambit of his professional activities; and the lack of proportionality of the measure. He also reiterated his argument that the disciplinary action was time-barred, and requested the suspension of the measure. Without prejudice to his arguments he claimed that in any event, the sanction should not be anything other than suspension for a month.

By a decision of 23 October 2012 the CAN disbarred the applicant. It noted that Article 51 of law no. 28 of 20 February 1991 provided that disbarment applied (importa, di diritto) in cases of a final finding of guilt under Article 295 of the Criminal Code (relevant to the present case). Thus, the CAN had no room for evaluation, discretion or decision making, save for the determination of whether an irrevocable criminal judgment finding guilt actually existed. In the present case, that fact had been ascertained and the judgment had been submitted by the applicant himself. It followed that the CAN’s finding applying such a sanction was simply declaratory, the legislator having prescribed mandatory disbarment in such cases. It further rejected the applicant’s plea concerning prescription in respect of the disciplinary action and his request for suspension of the disciplinary proceedings. It also considered that the disciplinary punishments provided for by law were justified by a general principle, namely that of behaving in line with the duties of correctness, dignity and honour for the profession, even beyond the exercise of the professional activity, in so far as such behaviour may harm the common beliefs of the community. Indeed, the law (Article 39 of legislative decree no. 56 of 1995) could only be interpreted in the sense that actions undertaken outside the scope of one’s activity must be subject to disciplinary action if they affected society’s values, reflected on the professional reputation of lawyers or notaries, or compromised the image of the forensic and notarial categories. The correctness of this interpretation was evident given that, according to the law, a finding of guilt brought about disbarment mandatorily, as well as from the wording of Article 5 of Decree no. 105 of 2011 concerning the statute of the Chamber of Advocates and Notaries, and the correlation between law no. 28 of 1991 and legislative decree no. 56 of 1995.

On 4 October 2012 the applicant challenged this decision.

On 16 January 2013 the Commission confirmed the decision of the CAN in its entirety and rejected the applicant’s challenges concerning the prescription of the disciplinary action, and the composition and constitution of the CAN. It also rejected his allegations concerning the lack of detail about the accusation, the automatic application of the sanction and the incoherence of the CAN’s decision, which had not followed the expert opinion. As for the applicant’s complaint that the facts that had led to the accusation had occurred outside his professional duties, as well as the proportionality of the measure, the Commission referred back to the decision of the CAN, which had found that such arguments were irrelevant given the content of Article 51 of law no. 28 of 1991 and its application in the present case.

On 18 April 2013 the applicant challenged the Commission’s decision before the Administrative Court, reiterating the arguments he had already put forward.

In his application lodged on 18 April 2013 against the decision of the Commission of 16 January 2003, the applicant raised a number of pleas (in a 100-page document). His pleas concerned issues relating to the law and its application, whether in substance or as a matter of procedure.

In his requests dated 24 May and 7 August 2013 the applicant raised two more procedural pleas. In a further request he also challenged the constitutional legitimacy of Articles 30 and 40 of legislative decree no. 56 of 1995 in so far as they did not provide for the possibility of requesting the withdrawal of or abstention by persons sitting on the disciplinary body. He also challenged the legitimacy of Article 51 of law no. 28 of 1991 and Article 39 of legislative decree no. 56 of 1995. The applicant argued that the fact that the legislation provided for an automatic sanction, without the possibility of a progressive application of sanctions depending on the specific case, subject to evaluation by the disciplinary body, was contrary to the principles of reasonableness and proportionality.

By a decision of 23 July 2013 the Administrative Court rejected the applicant’s pleas concerning the irregularity of the CAN’s constitution. In particular, as to the constitutional legitimacy of Articles 30 and 40 of legislative decree no. 56 of 1995, it considered that, in the present case, the applicant’s inability to request the withdrawal of a member of the organ had not breached his rights. As to the constitutional legitimacy of Article 51 of law no. 28 of 1991 and Article 39 of legislative decree no. 56 of 1995, the court considered that the automatic application of a sanction would be in breach of constitutional principles only if it were not preceded by disciplinary proceedings. In the present case, the applicant had been subjected to disciplinary proceedings during which he had been able to put forward all his arguments and defend himself before both the CAN and the Commission. Indeed, it transpired from the decision of the CAN that that organ had: verified the existence of the disciplinary breach (by establishing the existence of a final criminal judgment); heard the applicant various times; established the facts and indicated the relevant provisions relating to the breach at issue; allowed the applicant’s legal representative full access to the disciplinary file; and allowed the applicant to make written submissions and call witnesses as well as make any oral submissions in his defence. It followed that although the law provided for automatic application of the measure, as happened in the present case, the measure was applied only after disciplinary proceedings had been carried out in compliance with the relevant rules of procedure. In the present case the disciplinary organs had correctly interpreted and applied the law in conformity with the constitutional principles invoked. The applicant’s complaint was therefore ill-founded.

During the proceedings before the Administrative Court, the applicant’s request to suspend the effects of the Commission’s decision pending a decision in the administrative proceedings was rejected on 3 May 2013 following an oral hearing. The Administrative Court rejected the request on the grounds that the applicant had not shown what prejudice he had suffered and bearing in mind the interests of third parties and the crimes of which the applicant had been found guilty by means of a final judgment.

The applicant challenged that decision, but the Administrative Appeal Court dismissed his appeal on 5 May 2013.

On 7 August 2013 the applicant reiterated his challenges in respect of the constitutionality of Articles 30 and 40 of legislative decree no. 56 of 1995 as well as of Article 51 of law no. 28 of 1991, but this time in the light of the San Marino Fundamental Human Rights Charter and the Convention.

An oral hearing took place on 29 August 2013. The decision on the matter was delivered in the main proceedings (see below).

By a judgment of 10 October 2013 the Administrative Court dismissed the applicant’s claims (by means of a fifty-page judgment).

The court held that as it had already stated in various decisions in the present case, its jurisdiction in the instant case was that provided for under law no. 68 of 28 June 1989, as set out in Article 54 of legislative decree no. 56 of 1995, namely judicial review of administrative action (giurisdizione di legittimita`). Thus the impugned acts could only be challenged on the basis that the decision in the disciplinary proceedings was not in accordance with the law, had been delivered by a body that did not have the requisite jurisdiction or had been delivered in abuse of power. It was not for the administrative court to assess the facts or conduct leading to the decisions, which was the responsibility of the disciplinary body in accordance with the law. According to jurisprudence, in disciplinary proceedings against lawyers the establishment of the misconduct leading to the disciplinary breach was the exclusive competence of the disciplinary organs. However, the decision was subject to a control concerning its reasonableness, in judicial review proceedings. This was also confirmed by the disciplinary bodies’ statements. Other jurisprudence had confirmed that the factual assessment made by the disciplinary organ would be irreproachable as long as it was backed up by sufficient and appropriate reasons, and that judicial review should not extend to an assessment of the evidence or of the gravity of the offence, or the appropriateness of the sanction imposed. The court further noted that those were administrative proceedings and as such were not subject to the guarantees of criminal proceedings.

Bearing in mind the above, the court found that the applicant’s complaints were ill-founded. Concerning constitutional legitimacy, the court confirmed the decision it had delivered on 23 July 2013 (see paragraph 25 above) and noted that the applicant had again reiterated those complaints.

On 13 November 2013 the applicant appealed against the Administrative Court judgment of 10 October 2013. He once again reiterated his claims concerning constitutional legitimacy (mentioned above) and the lack of adequate reasoning given in this respect by the previous organs. He also challenged the first-instance court’s findings in so far as they had repeatedly relied on previous decisions given in his case. They had also relied on Italian jurisprudence without considering the fact that San Marino law was different from Italian law. He further considered that the first-instance court had wrongly interpreted and applied relevant laws in relation to each and every one of his claims.

On 11 February 2014 the applicant submitted further written submissions on his grounds of appeal. On 11 February 2014 the parties agreed that no oral pleadings were necessary since the arguments had already been exhaustively made.

The applicant’s appeal was dismissed and the judgment of the Administrative Court was upheld on appeal on 24 March 2014.

The Administrative Appeal Court noted that the issues of constitutional legitimacy had once again been reiterated. It considered that the CAN and the Commission were disciplinary organs to which Articles 6 and 13 of the Convention, or the equivalent articles of the San Marino (human rights) Declaration did not apply. Furthermore, the Administrative Appeal Court highlighted that the law distinguished between minor crimes and more grave crimes when regulating the application of the various applicable sanctions, including disbarment from a profession. The application of such a serious sanction, which only applied to more serious crimes, in the applicant’s case had been wilfully and consciously decided by the legislator, leaving no discretion to the disciplinary Commission. It was worth noting that in San Marino, lawyers also carried out the functions of notaries, and a criminal conviction for making false declarations in public documents was objectively incompatible with the function of a public official which was, by definition, the guarantor of truthfulness and the veracity of documents. Thus, the fact that the law provided an automatic application of the sanction in such cases could not be considered unreasonable or disproportionate, and was thus in conformity with Article 4 of the San Marino Declaration.

As to the applicant’s complaints concerning the first-instance administrative decision, the court found that the first-instance court had given relevant and sufficient reasons in its decision and that its findings were valid. The mere fact that in some instances that decision had relied on Italian jurisprudence only served to further the reasoning in relation to the arguments raised. As to each of the remaining grounds of appeal, the Administrative Appeal Court entered into each and every one and reached the conclusion that they were all manifestly ill-founded.

The decision to disbar the second applicant was communicated to the Employment Office, which in turn and in accordance with Articles 12, 13, 49 and 50 of law no. 28 of 1991, namely the legal framework concerning the exercise of the liberal professions, struck him off its list of liberal professionals. That entailed the automatic cancelling of his VAT number (codice operatore economico) as from 18 February 2013.

Article 295 of the Criminal Code, concerning the offence of making false declarations in public documents, reads as follows:

“A public official who, in the exercise of his duties, counterfeits or alters a public deed shall be liable to imprisonment and interdiction from public office of the third degree. The same actions carried out by an individual attract a sanction of imprisonment of one lesser degree.”

Article 9 of legislative decree no. 56 of 26 April 1995, concerning the professional ethics of lawyers and notaries, and in particular their general duties, reads as follows:

“The conduct of anyone registered with the Chamber of Advocates must be irreprehensible and characterised by the decorum, dignity and morality associated with his functions, even beyond the exercise of his or her profession as a lawyer or notary.”

Article 39, concerning sanctions, reads as follows:

“The Chamber of Advocates and Notaries may institute (dar corso) disciplinary proceedings against an advocate or notary registered with the Bar, who, in the exercise of the profession, has by any means tarnished the dignity of the profession and the decorum and independence of the forensic and notarial sector, or has been lacking in the performance of his or her professional duties. Having established responsibility in accordance with the gravity of the violation and applying the principle of progressive application of sanctions (principio di gradualità), the Chamber shall apply one of the following sanctions:

(a) - private reprimand (il richiamo) to be applied in the case and as provided for in Article 47 of Law no. 28 of 1991

- formal reprimand (la censura) to be applied in the case and as provided for in Article 48 of Law no. 28 of 1991

- temporary suspension from the exercise of the profession to be applied in the case and as provided for in Article 49 of Law no. 28 of 1991

- removal from the Bar (la cancellazione dall’albo) to be applied in the case and as provided for in Article 50 of Law no. 28 of 1991

- disbarment from the profession (la radiazione dalla professione) to be applied in the case and as provided for in Article 51 of Law no. 28 of 1991.

Article 54 reads as follows:

“Decisions of ... the Chamber of Advocates and Notaries may be appealed against by means of a challenge (opposizione) and an application before the administrative courts as provided for by Law no. 68 of 28 June 1989.”

Under Article 37 of law no. 28 of 20 February 1991 (concerning discipline in the liberal professions – libere professioni), decisions of the Chamber of Advocates and Notaries may be challenged before the National Commission of Liberal Professions, and the latter’s decisions may be challenged under Article 44 of the same decree (see below).

In so far as relevant, the pertinent articles of law no. 28 of 20 February 1991 read as follows:

“The National Commission of Liberal Professions has the following functions:

N. to decide by administrative means challenges to decisions made by the Chamber of Advocates and Notaries on disciplinary matters”.

“The decisions of the National Commission of Liberal Professions may be challenged before the Administrative Tribunal established by Law no. 68 of 28 June 1989.”

“Disciplinary action may be taken in respect of any conduct by a professional, both during the exercise of his functions and beyond such exercise, in so far as such conduct may be detrimental to his own professional dignity, as well as to the decorum and independence of the category of professionals to which he belongs.”

The Chamber of Advocates and Notaries, may, if it considers it appropriate in view of the nature and gravity of the impugned conduct, and applying in so far as possible the principle of progressive application of sanctions (principio di gradualità), apply the following sanctions

- private reprimand (il richiamo)

- formal reprimand (la censura)

- temporary suspension from the exercise of a profession

- removal from the Bar (la cancellazione dall’albo)

- disbarment from the profession (la radiazione dalla professione).

“The sanction of disbarment from the profession is provided for in cases in which the professional has been punished for committing an offence, by means of a final judgment, to imprisonment, interdiction from public office, or to disbarment from the profession, for a term of more than two years. Disbarment from the profession is mandatory in cases where a guilty verdict has been passed by means of final judgment for the offences referred to in Articles 295, 296, 354, 358 and 361 of the Criminal Code, irrespective of the punishment handed down in the specific case.

Decisions in respect of the preceding Articles nos. 48, 49, 50 and 51 can be adopted only following disciplinary proceedings.

The rules relevant to each respective profession shall determine the method and form of disciplinary proceedings, ensuring in every case the principle of proportionality of the sanction to the infraction committed, the obligation to notify the accused of the accusation, as well as to the latter’s right of defence.

“... A professional who has been disbarred may be reinstated only if he or she has been rehabilitated and it has been shown that his or her conduct has been irreprehensible.”

Administrative proceedings are provided for by law no. 68 of 28 June 1989 concerning jurisdiction in administrative matters, the review of legitimacy and administrative sanctions. The relevant provisions, in so far as relevant, read as follows:

“Whosoever has a direct and immediate interest in respect of an act on the part of the public administration, social security institution or autonomous State agencies or entities which is deemed to be detrimental to his interests may seek a judicial remedy (può ricorrere in via giurisdizionale) before a first-instance administrative judge.” ...

“The first-instance administrative judge is competent to decide in the first instance. If the request is upheld, the impugned act is annulled.” (The judge may also award costs and give instructions as to the enforcement of the decision.)

“The decisions of the first-instance administrative judge may be appealed against before the administrative appeal judge within thirty days of the notification given by the registry. ... The appeal does not suspend the enforcement of the measure.”

Other relevant provisions of domestic law can be found in Biagioli, (dec.), cited above.