Judgment II. ÚS 443/16 – Conditions for registering a graduate of a foreign law school in the list of trainee lawyers; the right to free choice of profession

07 November 2016

In evaluating whether the education of an applicant for registration in the list of trainee lawyers meets the conditions provided in § 37 par. 1 let. b) point 2 of the Act on the Legal Profession, one must look not only at knowledge of the relevant areas of law, but also at the legal skills the applicant has acquired and his other experience.

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On 25 October the Constitutional Court granted the complaint of David Buzek who alleged that general courts violated his right to due proceedings and his right to free choice of his profession and the training for that profession. In proceedings before the general courts, the complainant sought to have an obligation imposed on the Czech Bar Association (the “CBA”) to register him in the list of trainee lawyers. The complainant is a graduate of the master’s program in law at the Jagiellonian University in Krakow, and although the Czech Republic Ministry of Education, Youth and Sports issued him a certification recognizing his university education as equivalent to education received in the Czech Republic, the CBA refused to register him in the list of trainee lawyers. It justified its decision on the grounds that the complainant did not meet the conditions provided in § 37 par. 1 let. b) point 2 of Act no. 85/1996 Coll., on the Legal Profession, as then in effect, because at the Polish university he did not acquire an education that would correspond in content and scope to the general education that can be acquired in the field of law at a university in the Czech Republic. The general courts subsequently agreed with the CBA’s opinion, and did not grant the complainant’s application. His only option was to complete special studies at a Czech school of law, the results of which the CBA could take into account.
After extensive recapitulation of the general principles arising from European Union law and comparing the legal frameworks in other member states of the European Union, the Constitutional Court reviewed the alleged interference in the complainant’s right to free choice of profession, based on the test of proportionality.

click The Constitutional Court first evaluated whether the failure to register the complainant on the grounds of alleged non-fulfilment of the conditions under the Act on the Legal Profession could achieve a legitimate aim, the practice of law by highly qualified persons who will ensure professional provision of legal services. As regards this point, the Constitutional Court found the action in question suitable, because it is precisely through this step that the CBA can prevent someone from becoming a trainee lawyer when in his case there is a risk that he would not provide legal services at the requisite level. Therefore, in the Constitutional Court’s opinion the first step in the test of proportionality was met.

click here The Constitutional Court then considered the question of whether the intervention that was objected to was really necessary, and whether there was not an alternative that would be less disruptive to the complainant’s rights. In this respect, the Constitutional Court found error on the part of the CBA. In evaluating the level of the complainant’s education, the CBA, as well as subsequently the general courts, focused only on the complainant’s knowledge of several selected areas of law, and completely failed to evaluate other decisive facts, such as, for example, the high degree of quality of Polish legal education, the complainant’s several years of professional practice, his high-quality filings in this case, as well as a number of other circumstances.

source site Thus, from the foregoing facts it appeared that both the CBA and the general courts evaluated the complainant’s level of knowledge and skill in an unjustifiably narrow manner. In the Constitutional Court’s opinion, the legitimate pursued aim could have been met to an equivalent degree even if the complainant had been registered in the list of trainee lawyers. In that alternative, the complainant could then have practiced law on his trainer’s responsibility and continued to acquire necessary knowledge and experience, which he could have subsequently proved at the bar exam. Thus, the contested action by the CBA was not necessary in view of the legitimate aim pursued.

In view of the fact that the CBA’s action did not meet the second criterion of the proportionality test, it was necessary to state at this point that the complainant’s right to free choice of profession was in fact violated, because the general courts also did not subsequently provide the requisite protection for his rights. In reviewing evidence, the general courts should also look at the availability of special studies.

Therefore, the Constitutional Court granted the constitutional complaint and annulled the contested decisions.