The ECHR clarifies in an advisory opinion that a lawyer’s absence from a disciplinary hearing does not justify automatically excluding representation

The absence of a lawyer from their own disciplinary hearing does not justify the automatic exclusion of representation by a representative, the European Court of Human Rights states in an advisory opinion presented on 20 October. Authorities may require personal attendance, but they must hear the representative’s explanations and verify whether the person has unequivocally waived their right to a defence or is attempting to evade the proceedings. The unanimous opinion of the Grand Chamber responds to a request from Luxembourg; it is not binding and does not annul the sanction in the case examined.

In brief

The ECtHR accepts the obligation of personal attendance, but the disciplinary body must hear the explanations of the authorised representative concerning the absence; failure to appear alone does not prove a waiver of the right to a defence.

If an unequivocal waiver or an intention to evade the proceedings has not been established, the person must have a genuine opportunity to defend themselves, including through an adjournment or representation in their absence. The guarantee must be respected at least on appeal.

The case concerns a former lawyer who was permanently disbarred in Luxembourg. The representative was unable to represent her at the hearing in November 2024, following the rejection of a request for an adjournment on medical grounds, supported by a certificate.

Refusing representation, combined with the absence of a fresh adversarial examination of the facts and law, may disproportionately restrict the right to a fair trial. The appeal on points of law did not compensate for this deficiency in the proceedings examined.

The unanimous opinion, presented on 20 October at the request of the Constitutional Court of Luxembourg, is not binding, does not annul the sanction and does not automatically amend the legislation of other states. The dispute continues at national level.

The dispute concerns a former lawyer, identified in the judicial documents by the initials F.C., who resigned from the Luxembourg Bar in May 2013. In 2021, the bar initiated disciplinary proceedings for acts committed during the period in which she practised the profession. The Disciplinary and Administrative Council permanently disbarred her in July 2023, by a decision rendered in her absence, and she challenged the sanction.

The appeal hearing was adjourned five times, in two cases at her request, and was eventually scheduled for 5 November 2024, according to the full opinion. F.C. requested another adjournment on medical grounds, accompanied by a certificate, but the request was rejected on the eve of the hearing. At the hearing, the representative asked to represent her in her absence and to present her arguments. The disciplinary appeal body refused and upheld the permanent disbarment.

Luxembourg law required the lawyer under investigation to appear personally: she could be assisted by a representative, but could not be replaced by one if she was absent. In addition, the decision rendered in her absence could not be set aside, at the request of the sanctioned person, so that the same body could re-examine the case adversarially. This procedure is distinct from the ordinary appeal, through which a higher court reviews a previous decision.

F.C. brought the matter before the Court of Cassation, alleging a violation of the right to a fair trial. In October 2025, it referred a question to the Constitutional Court, which requested the ECtHR’s opinion in February 2026. The Strasbourg court examined the fair-trial guarantees applicable to the civil limb of the disciplinary proceedings. This is not a criminal case, and the guarantees specific to criminal charges do not automatically transfer to it.

The Grand Chamber recognises that personal attendance may serve a legitimate purpose. The disciplinary body may need a direct dialogue with the person under investigation, and the authorities must be able to prevent unjustified delays and delaying tactics. The obligation to attend a hearing is not, in itself, contrary to the European Convention on Human Rights.

The limit arises when failure to appear is automatically treated as a waiver of the right to a defence. If the person has appointed a lawyer, the disciplinary body cannot, as a matter of principle, refuse to hear their explanations concerning the absence. These explanations enable it to establish the specific circumstances and verify whether there has been an unequivocal waiver or an intention to avoid the proceedings. The mere fact that the person did not attend is insufficient for that conclusion.

If such a waiver or evasion has not been established, the authority must provide a genuine opportunity to defend oneself. It may, for example, adjourn the hearing or allow representation in the person’s absence. In a system with two levels of jurisdiction, this requirement must be respected at least on appeal, where it must be possible to examine the case effectively both in fact and in law. The opinion therefore does not grant the person under investigation an unconditional right to ignore summonses.

For the Court, hearing the representative also serves the proper administration of the proceedings: the disciplinary body receives information about the absence and the substance of the defence before making a decision. The importance of the guarantee increases when sanctions may seriously affect the person’s career, professional reputation and means of subsistence. Refusing to hear the appointed lawyer may constitute a disproportionate restriction of the right to a fair trial.

A second issue is what happens after the decision rendered in the person’s absence. If representation was refused, and the person did not unequivocally waive their right to a defence or seek to evade the proceedings, there must be an effective means of obtaining a fresh adversarial examination, in fact and in law. In the Luxembourg proceedings examined, the appeal on points of law, limited to questions of law, did not remedy this deficiency: it did not allow the facts or the arguments that the appeal body had refused to hear to be re-examined.

The opinion thus calls into question the combination of refusing representation on appeal and the absence of a subsequent mechanism with guarantees equivalent to a re-examination on the merits. It does not declare every disciplinary procedure conducted in absentia unlawful and does not determine the former lawyer’s guilt or innocence. The sanction was not annulled by the ECtHR, and resolution of the dispute remains within the national proceedings in Luxembourg.

The mechanism used allows the highest courts designated by participating states to request guidance from the ECtHR on issues concerning the interpretation of the Convention arising in pending cases. Protocol No. 16, in force since August 2018, specifies that opinions are not binding. The one presented on 20 October is the tenth issued under this framework. The interpretation may guide the examination of similar situations, without automatically amending Romanian legislation or overturning sanctions imposed in other states.

The Court notes that its interpretation is also consistent with the disciplinary safeguards in the Convention for the Protection of the Profession of Lawyer, adopted by the Council of Europe in March 2025 and opened for signature in May. This instrument provides, among other things, for legal assistance and representation and independent review of sanctions.

https://2eu.brussels/ro/news/cedo-stabileste-ca-absenta-unui-avocat-de-la-audierea-disciplinara-nu-poate-anula-automat-dreptul-la-aparare