U-I-41/93

Reference no.:
U-I-41/93
Objavljeno:
OdlUS II, 88 | 07.10.1993
ECLI:
ECLI:SI:USRS:1993:U.I.41.93
Act:
Law on legal aid (Off. Gaz. SRS, no. 23/79). para. 3 of art. 60 Statute of the chamber of attorneys of Slovenia of 20.7.1987, art. 11
Operative provisions:
The initiative for assessing the constitutionality and legality of the impugned provisions of the statute and law is not accepted.
Abstract:
The provisions of the statute, which, in relation to performing activities of the legal profession mean only the regulation of legal standards, can no longer be used after the validation of the new law which no longer defines these conditions or defines them otherwise.
Password:
The legal nature of the statute of the chamber of attorneys of Slovenia and its individual provisions.
The use of a general act which has ceased to have a legal foundation. Taking over statutory material in a general act.
Defining conditions for performing the activity (profession) of attorney.
Legal means in proceedings for establishing conditions for performing the activities of an attorney.
Non-competence of the Constitutional Court to assess legal provisions which have ceased to apply after the submission of an initiative. Rejection of a separate opinion of a constitutional judge.
Legal basis:
Law on the legal profession, art.72, point 7 of para. 1 of art. 25, para. 1 of art. 27 and art. 31
Constitutional Law for Implementing the Constitution RS, art. 7 Law for proceedings before the Constitutional Court SRS, art. 15
Document in PDF:
The full text:
No: U-I-41/93
Date: 7.10.1993
 
RESOLUTION
 
At a session held on 7.10.1993, the Constitutional Court dealt with the initiative of Jozef Antauer of Ljubljana, and
 
passed the following resolution
 
The Constitutional Court does not accept the initiative and is not commencing proceedings for evaluating the constitutionality and legality of the provisions of:
 
- article 11 of the statute of the Chamber of Attorneys of Slovenia of 20.7.1987,
 
- the third paragraph of article 60 of the law on legal aid (Official Gazette SRS, no. 23/79).
 
Reasoning
 
By submissions of 24.2.1993 and 1.6.1993, the initiator impugned article 11 of the statute of the Chamber of Attorneys of Slovenia, and logically also the cited provisions of the law on legal aid. In his opinion, article 11 of the statute is not in accordance with the Constitution and law, since it contains discretionary rights. According to this article, a regional council of the attorneys' commission for establishing the fulfilment of conditions for performing activities in the legal profession provides an opinion on a candidate's political and moral suitability, and an opinion on whether a candidate has provided suitable premises and other material conditions for performing activities in the legal profession. In the opinion of the initiator, the statute is not in accordance with the law also because against a decision on performing activities in the legal profession, judicial protection before the general court of associated labour is allowed, but not an administrative dispute, on which the initiator refers to article 18 of the law on the legal profession and other legal aid of 1972, which has not been valid since 1979. In viw of the fact that the statute does not regulate this question but the law on legal aid (Official Gazette SRS, no. 23/79, para. 3 of article 60) had such a provision, which was still valid when the initiative was lodged, the Constitutional Court considered that the initiator logically impugned this legal provision. The initiator also impugned the provisions of the second paragraph of article 5 of the regulations on establishing the suitability of business premises, material and other conditions for performing activities of the legal profession, of 3.11.1990. The Constitutional Court will decide separately on this case, which is recorded under no. U-I-179/93.
 
The Constitutional Court does not accept the initiative.
 
The impugned provisions of the statute of the Chamber of Attorneys of Slovenia has the character of a general act, issued for the execution of public authority, since the Chamber of Attorneys of Slovenia has legal authority for establishing conditions for carrying on the legal profession. The Constitutional Court is therefore competent to assess its accordance with the Constitution and law on the basis of the provisions of line 5 of the first paragraph of article 160 of the Constitution.
 
The impugned statute has a legal foundation in the law on legal aid, which ceased to apply with the validation of the law on the legal profession (Official Gazette RS, no. 18/93) of 24 April 1993. The initiator therefore lodged his initiative at a time when the law on legal aid still applied, but which ceased to apply during the proceedings before the Constitutional Court. This law defined conditions in article 20, which a lawyer must fulfill, and in particular it defined for a lawyer, in article 46, also that s/he must have appropriate premises and fulfill material and other conditions defined by the Chamber of Attorneys of Slovenia by a self-regulated general act.
 
The statute of the chamber of attorneys took over the cited provisions in articles 8 and 9, and in article 10 defined that a commission for establishing the fulfillment of conditions for performing the activities of an attorney shall decide on the fulfillment of conditions, and on the basis of article 11 of the statute shall obtain the prior opinion of the regional council of attorneys.
 
According to article 72 of the law on the legal profession, the chamber is bound to harmonise its statute and other general acts of the chamber with the provisions of this law in six months from its taking effect, i.e., to 24.10.1993. However, irrespective of this, the impugned provision of the first line of the first paragraph of article 11 of the statute, insofar as it refers to the cited conditions for performing the activities of an attorney, can no longer be used, or rather, could no longer be used with the taking effect of this law. This law, namely, no longer defines conditions which an attorney must fulfill according to the 4th line of the first paragraph of article 20 of the law on legal aid of 1979 (" - that s/he is committed to the development of socialist self-management relations and is not morally unsuitable for performing the activities of an attorney"), on the fulfillment of which the regional council of attorneys must provide an opinion to the commission. Instead of these conditions, the currently valid law on the legal profession defines, in point 7 of the first paragraph of article 25, the condition that a lawyer may be (someone) who is worthy of trust for performing the profession of attorney. According to the first paragraph of article 27, it is considered that someone is not worthy of trust for performing the profession of attorney who has been convicted of a criminal offence because of which s/he is morally unworthy for performing the profession of attorney, or who behaves in such a way that it is possible to conclude on the basis of his behaviour that s/he will not honestly and conscientiously perform the profession of attorney. According to these regulations, therefore, a candidate's moral suitability is only a precondition in cases in which it is shown that circumstances exist under the first paragraph of article 27 of the law, raising a legal doubt that the individual is not worthy of trust for performing the profession of attorney. The body which decides on the inscription or removal from the list of attorneys is bound to use the cited legal provisions directly. The Constitutional Court also further found that the provisions of the 2nd line of the first paragraph of article 11 of the statute does not allow arbitrariness in deciding, since the competent commission, which is not bound by the opinion of the regional council of attorneys on whether the candidate for inscription in the register of attorneys has provided suitable premises, must establish whether the candidate meets this condition, which is objectivised in the impugned regulations. These, namely, in article 2, determine that an attorney, or a candidate for inscription in the register of attorneys, must have business premises which include a room for the attorney, a room for a secretary which may also be a waiting room, a telephone and sanitation with running water.
 
The provision that legal protection against a decision of the body which establishes the fulfillment of conditions for performing the activity of an individual attorney is allowable before the general court of associated labour, is contained in the third paragraph of article 60 of the law on legal aid and not the statute of the chamber of attorneys as the initiator mistakenly claims. During the procedure before the constitutional court, on 24.3.1993, the new law on the legal profession took effect, which regulates this matter otherwise. In article 31 it defines that the body defined in the statute of the Chamber of Attorneys of Slovenia shall decide on inscription or removal from the register of attorneys in an administrative process. There is no complaint against its decision and an administrative dispute is thus possible. This means the implementation of a regulation such as the initiator also takes over in his initiative. According to the standpoint of principle of the Constitutional Court (14th session of 9.4.1992), in a case when individual provisions of a law or a law as a whole ceases to apply after the lodging of an initiative, the Constitutional Court does not generally begin the proceedings unless new legal provisions take over the contents of the previously valid disputed provisions of the law or if the disputed provisions of the law are still used in a transitional period. Since this is not such a case, even in the part of the initiative in which is logically impugned the provisions of the third paragraph of article 60 of the law on legal aid, the Constitutional Court does not accept the initiative and is not commencing proceedings for assessing constitutionality.
 
The Constitutional Court adopted this resolution on the basis of article 7 of the Constitutional Law for Implementing the Constitution of the Republic of Slovenia and article 15 of the law on proceedings before the Constitutional Court SR Slovenia (Official Gazette SRS, no. 39/74 and 28/76).
 
 
President
Dr. Peter Jambrek
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
statute
Applicant:
Jožef Antauer, Ljubljana
Date of application:
24.02.1993
Date of decision:
07.10.1993
Type of decision adopted:
ruling
Outcome of proceedings:
dismissal
Document:
AN00268