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Decisions of the Bar Exam Board Shall Be Subject to Full Judicial Review, in Fact and in Law
On Tuesday, 3 July 2018, the Constitutional Court of Moldova delivered a judgment on the exception of unconstitutionality of certain provisions of the Law on legal profession no. 1260 of 19 July 2002.
Circumstances of the case
The Court’s assessment
It recalled that the independence of attorneys from the State power constitutes, overall, a feature of a free society. The interest of the public to live in a free society is dependent on such sensitive features as independence, impartiality and availability of an attorney towards citizens, when providing legal advice and services. Therefore, members of legal profession have to be well trained and honest. Here, thus, arises the need for an appropriate examination of those willing to enter the legal profession, by a Bar Exam Board established by Attorneys’ Association.
Although, the Court emphasized that the Attorneys’ Association shall exercise its powers in a way that would strengthen the public perception of attorneys’ profession where admission is only granted to individuals who meet its standards, with no discrimination. Hence, one side of the coin is represented by the self-governance principle of this profession, while the flip of the coin represents fair procedures, which do not undermine unreasonably public trust in the attorneys’ profession.
Should a well-trained individual in law aspiring to become an attorney not pass the legally provided exam, due to flaws in procedure, there might be affected the general trust in attorneys’ profession.
Given that Board’s decisions can be challenged before a court of law in the part related to the procedure of conducting exams, but the awarded score cannot be challenged, the Court examined this legislative solution in light of principles and reasoning provided in a number of relevant cases decided by the European Court of Human Rights (Alexandridis v. Greece, 21 February 2008; Bigaeva v. Greece, 28 May 2009; Lombardi Vallauri v. Italy, 20 October 2009).
The European case-law considered by the Court lead to a conclusion of unconstitutionality with respect to Article 43, para. 4 of the Law on legal profession, providing that decisions of the Board can only be challenged before a court of law in part, i.e. examination procedure, so that the awarded score cannot be challenged. Therefore, the Court emphasized that there shall be applied a full judicial review, in fact and in law, with respect to any aspect (procedural or a substantive one).
In order for a judicial dialogue to be launched, the Court also tackled the scope of the review applied by the courts of law, when called upon to decide on the challenged decisions of the Board.
Therefore, insofar as there are challenged issues encroaching upon individual’s fundamental rights, allegedly violated by a decision adopted by the Board, the courts of law shall apply a review that would ensure an effective protection of such rights, in line with the Constitution, with the case-law of the Constitutional Court, with the European Convention and with the case-law of the European Court of Human Rights. When, however, there are challenged theoretical aspects on the established scale of grading and the score awarded by the Board, the court of law shall not substitute its vision with that of the Bar Exam Board, but it only shall check whether the decision of the Board is a reasonable one.
The Court mentioned that the reasonability standard implies, from this perspective, that the courts of law have to check whether the reasoning of the score awarded by the Board supports, as a whole, the adopted decision. They do not have to undertake themselves de novo drafting a new reasoning of their own. They do not have to substitute themselves to the Board. The reasoning has to be examined as a whole, and not based on each reason taken apart. In other words, the court of law does not have to rely on one error or on one element of the decision that does not affect the decision as a whole.
As with regard to effective procedural safeguards, the Court observed that the performance of the subjects of the decisions issued by the Board declared unreasonable by courts of law have to be reassessed, by a repeated appraisal of the oral test, before an independent board, a different one from the Bar Exam Board. In this sense, the Court issued an Address to the Parliament of Moldova for the amendment of the Law on legal profession.
Therefore, the Court emphasized that the prerogative of the Attorneys’ Association to conduct exams is a feature of its self-organising function, which is not in breach of the Constitution. Nevertheless, this function has to be exercised while observing fundamental human rights of the individual and by adopting reasonable decisions by the Board, when assessing the knowledge of the candidates to the legal profession.
Conclusions of the Court
It declared unconstitutional the text ”in the part relating to the procedure of conducting exams. The awarded score cannot be challenged” of Article 43 para. 4 of the Law no. 1260 of 19 July 2002 on the legal profession.
This judgment is final, it cannot be appealed, shall enter into force on the date of its adoption, and shall be published in the Official Journal of Moldova.
The full reasoning is available in the Judgment of the Constitutional Court of Moldova.
This is an English language courtesy translation of the original press-release in Romanian language.