Entities to which International Guarantees Apply

A and Others v Spain (decision), 2 July 1990 [ECtHR]

Case no 13750/88

I. The applicants complain in the first place that Royal Decree No 2090/82, which lays down general regulations governing the rights and duties of lawyers, imposes supervision of young lawyers' groups by the Bar Council, notably through Article 64 para 3 They consider that this has involved an infringement of the right to freedom of association set forth in Article II of the Convention. (...)
However, the Commission notes that in Spain the Bar Associations are public law institutions regulated by law and pursue an objective in the general interest, namely the promotion of independent and competent legal assistance and therefore the promotion of justice itself. It points out that registration as a member of the Bar Association, which is open to all those who satisfy the statutory conditions, is a necessary precondition for practice as a lawyer.A professional regulatory body like the Bar Association, according to the case-law of the Convention institutions, cannot be regarded as an association wilhm the meaning of Article 11 of the С onvention (cf Eur Court H R, Lecompte. Van Leuven and De Meyere judgment of 23 June 1981, Series A no 43, p 26) The Commission observes, however, that the Saragossa Young Lawyers' Group, to which the applicants belong, is a group set up within the Saragossa Bar Association in 1975 - even before the entry into force of Royal Decree No 2090''82 - and all its members are registered members of that body Moreover, at no time have the applicants alleged that they intended to set up an association separate from the Bar Association or that they were prevented from doing so ConsequentK. the impugned provision constitutes one of (he Bar Association s internal regulations, and its existence does not restrict in any way the exercise of the applicants rights under Article 11 of the Convention It follows that in this respect the application is manifestly ill-founded and must be rejected pursuant to Article 27 para 2 of the Convention

II. The applicants also complain that Article 113 sub-para (g) of the impugned Royal Decree restricts the exercise of the right to form professional associations freely outside the Bar Association or to join such associations In this connection the Commission first reiterates the case-law to the effect that the provisions governing the activities of professional regulatory bodies must not prevent practitioners from forming together or joining professional associations, if there is not to be a violation of Anicle 11 of the Convention (cf the previously cited Lecompte. Van Leuven and De Meyere judgment) Consequently, the question ansea to what extent it is still possible for members of the Bar Association to set up or join a professional association or trade union.
The Commission notes in this connection that m its judgment of 15 July 1987 the Constitutional Court interpreted the impugned provision and held that it provided for disciplinary sanctions only m cases where, individually or collectively, members of the Bar Association knowingly disrupted its normal functions and activities or those of its subsidiary bodies.
The Commission considers that because of the principle according to which the Spanish Constitution overrides every ordinary law, and because of the role of the Constitutional Court, which is to act as the supreme interpreter of the Constitution (Article I of Institutional Act No 2/1979), there is no possibility that the impugned provision could form the basis in law, as the applicants allege, for infringements of lawyers' rights to freedom of association U notes in this connection that at no time have the applicants alleged that disciplinary sanctions have been imposed on them for forming or joining a professional association. Moreover, there is nothing in the application as submitted by the applicants to support their contention that the provision at issue actually infringes or might in future infringe their right to set up professional associations or trade unions or to join those which already exist. That being the case, it follows that in this respect the application is also manifestly ill-founded and must be rejected pursuant to Article 27 para. 2 of the Convention.

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