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The following abstract was prepared by the Federal Constitutional Court and submitted for publication to the CODICES database maintained by the Venice Commission. Abstracts published by the Venice Commission summarise the facts of the case and key legal considerations of the decision. For further information, please consult the CODICES database. | |
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Please cite the abstract as follows: | |
Abstract of the Federal Constitutional Court’s Order of 22 October 2017, 1 BvR 1822/16 [CODICES] | |
First Chamber of the First Senate Order of 22 October 2017 1 BvR 1822/16 | |
Headnotes (non-official):
1. Refusal of admission to the legal profession (Rechtsanwaltschaft) constitutes a serious interference with the fundamental right to freely choose one’s profession (first sentence of Article 12.1 of the Basic Law). It is only permissible for the purpose of protecting a common good of paramount importance while fully respecting the principle of proportionality. 2. A refusal on the grounds that the person concerned appears unworthy of practising as a lawyer is contingent upon a case-by-case assessment, requiring that the interests protected by fundamental rights of the person concerned be balanced against conflicting public interests, most notably the interest in ensuring a functioning administration of justice.
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I. The constitutional complaint proceedings concerned a refusal of admission to the legal profession (Rechtsanwaltschaft). The applicant claims a violation of her fundamental rights deriving, in particular, from the first sentence of Article 12.1 of the Basic Law.
The decision was based on the following considerations: The refusal of admission to the legal profession severely interferes with the fundamental right to freely choose one’s profession. The refusal of admission amounts, at least temporarily, to a prohibition to practise. Specifically, it restricts access to a profession on the basis of subjective requirements (subjektive Berufszugangsregelung). Such restriction requires a statutory basis and is only permissible if it is necessary for protecting a common good of paramount importance and satisfies the principle of proportionality. In light of the constitutionally protected freedom to choose one’s profession, the provisions governing refusal of admission based on unworthiness pursuant to § 7 no. 5 of the Federal Lawyers’ Act must be interpreted in a restrictive manner. A person may not be considered “unworthy” of entering the legal profession solely because his or her conduct is met with disapproval in society or in the professional environment. Rather, it is generally required that the misconduct in question potentially impairs public confidence in the integrity of the legal profession, as relating to a functioning administration of justice, and that the resulting impairment outweighs the interests protected by the fundamental rights of the person concerned. The challenged decisions did not fully meet these requirements. Nevertheless, the evaluation of the specific circumstances, both favourable and unfavourable, that were taken into account in the assessment of the applicant’s overall personality, was unobjectionable in the case at hand. Specifically, it was well justifiable to reproach the applicant for her refusal to acknowledge any fault on her part, and to draw negative conclusions based thereon. It is true that the significance of proven past misconduct may diminish over longer or shorter periods of time, as the case may be, to the point where it were no longer relevant or sufficient for refusing admission to the legal profession. Yet, if the person concerned persistently refuses to acknowledge any fault or blame, insisting instead that the conduct in question were justified and unobjectionable, this may be taken into account to the detriment of the person seeking admission to the legal profession. This is due to the fact that such behaviour is a relevant factor in the prognosis determining the decision on refusal of admission. It was not ascertainable in the present case, however, that the challenged decisions sufficiently balanced the constitutionally protected interests of the applicant against conflicting public interests that could possibly preclude admission to the legal profession. The assessment carried out with regard to the applicant’s personality, which found her to be unacceptable as a member of the legal profession without substantiating further reasons, fails to satisfy constitutional requirements. The decision rendered by the higher lawyers’ court already lacks the required prognosis determining potential impairments of conflicting interests that could preclude admission to the legal profession. Most notably, it would have been incumbent upon the court to specify whether and on what basis it must be presumed that the applicant, if admitted as a practising lawyer, would act in a manner that could impair public confidence in the integrity of the legal profession, especially as regards the public interest in a functioning administration of justice; to this end, relevant considerations include the risk that courts might be prevented from resolving legal disputes in a focused and expedient manner or that persons seeking legal assistance might be unable to obtain reliable advice or representation from practising lawyers. Moreover, it is not manifestly evident in the present case that the interests of the applicant are outweighed by conflicting public interests. Therefore it would have been necessary to specify the relevant findings and considerations supporting any such conclusion. |