Strasbourg’s Luxembourg advisory opinion: absence from a disciplinary hearing does not automatically remove the right to a defence

The question put to the Grand Chamber

On 20 October 2026, the Court issued its advisory opinion requested by Luxembourg’s Constitutional Court concerning personal attendance by lawyers in disciplinary proceedings and the consequences of absence. The question included exclusion of representation and the lack of a fresh challenge to a default decision.

The opinion accepts that personal attendance may be required. It also stresses that absence alone does not establish an unequivocal waiver of defence rights or an attempt to evade proceedings. A disciplinary body must consider the explanation offered by instructed counsel before drawing those conclusions.

Meaningful defence requires attention to the procedure as a whole

Where waiver or evasion is not established, the Court identifies safeguards such as adjournment or representation despite absence, at least at the appellate stage. Combining exclusion of counsel with no fresh adversarial examination of facts and law can upset the fair balance required by Article 6.

This is a procedural analysis, not permission to disregard a hearing notice. In a hypothetical illness-related absence, the affected professional should communicate promptly, provide appropriate evidence and explain the practical request being made. Silence leaves a very different record from a documented request for accommodation.

Preserve reasons and the response

Keep the hearing notice, medical or other supporting evidence, requests for adjournment or representation, and the tribunal’s ruling. Record whether counsel was permitted to explain the absence and what review was available. These facts matter more than a general assertion that the hearing was unfair.

A representative should also distinguish the ability to raise a point of law from an opportunity for a fresh examination of facts and law. Remedies with different scope cannot automatically be treated as equivalent. The actual national procedure needs to be read before drawing a conclusion.

An advisory opinion does not decide every national case

Under Protocol No. 16, advisory opinions are not binding. This opinion does not itself overturn the underlying sanction or automatically rewrite other countries’ disciplinary rules. The requesting court applies the guidance within the domestic proceedings, and other cases require their own legal analysis.

The practical significance for regulated professionals

Attendance obligations and defence rights should be addressed together. If attendance becomes impossible, act early, document the reason and request a workable procedural response. Before relying on the opinion outside its original setting, compare the available representation, appellate review and potential consequences of the sanction.

Legal check date

Sources and law checked on 27 October 2026. Later developments are not reflected automatically. Application of the rules depends on the individual facts.