The Georgian Bar Association is participating in the process of amending the Constitution of Georgia. CCBE welcomed the fact that the Georgian lawyers were invited to give their input in shaping the constitutional framework for the legal profession in a letter addressed to the Chairman of the Parliament of Georgia, who is at the same time the Chairman of the State Constitutional Commission. The proposed amendments to the Constitution aim to ensure the right to a fair trial by guaranteeing, inter alia, uniform legal representation in courts, the role of lawyers in legal defence and the importance of the independence of the Bar.
On Thursday, 02 February 2017, the CCBE sent a letter to the President of Ukraine, to the Speaker of the Verkhovna Rada of Ukraine and to the Chair of the parliamentary Justice Committee, in which the CCBE emphasises the importance that the state must respect the independence and the self-regulation principles applying to the legal profession, also in regard to the right of the bars to set their own membership fees. Read full letter here.
Ukraine has a population of approximately 43 million and 35000 registered advocates (as of January 2017). The Ukrainian National Bar Association (UNBA) has been established by law in 2012 as an independent self-governed organization. UNBA has joined the CCBE as an observer member in December 2016.
Key information about the profession:
- Initial training of lawyers: Complete higher legal education (master’s degree in law), command of official language and two years of practice in the field of law are required to take the bar exam. It is then necessary to undertake a 6-month traineeship program. Upon completion of traineeship, the certificate of right to practice law is issued and the information is entered in the Unified Register of Advocates of Ukraine.Persons who have worked as an advocate’s assistant for at least one year are exempt from undertaking the 6-month traineeship program.
- Continuous training is mandatory. It is organized by the Ukrainian National Bar Association and regional bar councils, as well as other organizations. All of the lecturers undergo certification by the UNBA Expert Committee to ensure high professional level of the speakers. Failure to comply with the mandatory continuous training is a disciplinary offense.
- Specialization is not mandatory. Advocates are free to choose the field in which to practice.
- Discipline: Regional Qualification and Disciplinary Commissions of the Bar (QDCB) are in charge of reviewing disciplinary actions against advocates. They are composed of advocates, elected at regional conferences for a 5-year term. The decisions of QDCBs may be appealed to the Higher Qualification and Disciplinary Commission of the Bar, which is composed of 30 advocates, 27 elected by respective regional conferences and 3, the President and two Vice-Presidents – elected by the Congress of Advocates of Ukraine.
- Legal Aid: the Ministry of Justice of Ukraine is in charge of the legal aid system in Ukraine. It is financed by the government. Ukrainian National Bar Association has criticized the system on both national and international level and even prepared a special report on the subject. Primary concerns of the UNBA in this regard is the process of admission of advocates by the Ministry of Justice to provide legal aid (additional exams, even though everyone has already passed the bar exam); non-transparent financing; the fact that directors of regional legal aid centers are often not advocates themselves, and advocates have to show the case files to them in order to get paid, thus violating professional secrecy etc.
Current concerns of the Bar and main challenges in the coming years:
- One of the gravest concerns is the continuous violation of advocates’ professional rights and guarantees by government institutions and law enforcement agencies. Since 2015 CCBE has intervened on a number of occasions with letters addressed to the President of Ukraine, the Prime Minister, the Prosecutor General and other notable officials. The Prosecutor General and his deputy even used inappropriate language when addressing advocates during a hearing of a parliamentary committee and on national TV respectively.
- On 20 December 2016, the parliament of Ukraine approved amendments to the Tax Code of Ukraine, that in turn, amended Law of Ukraine ‘On the Bar and Practice of Law’, thus limiting the existing discretion of advocates’ self-government to set the sum and procedure of payment of yearly membership fees, as well as traineeship fees. Such changes were introduced without any prior consultation with Ukrainian National Bar Association whatsoever. The CCBE has addressed the President of Ukraine with this regard on 23 December 2016.
- There is a plan for 2017 to introduce amendments to the Law of Ukraine “On the Bar and Practice of Law” by the Judicial Reform Council under the auspices of the President of Ukraine. The UNBA, being the regulator of the profession, has not even been invited to delegate members in such an important institution. The planned amendments have not been discussed by the government with the regional bars and UNBA and thus are strongly opposed on both the regional and national levels.
- Amendments to the Constitution of Ukraine establishing mandatory court representation by advocates have been approved by the parliament of Ukraine in 2016. The amendments come into effect in stages:
- 1 January 2017 – Supreme Court of Ukraine and cassation courts;
- 1 January 2018 – Appellate courts;
- 1 January 2019 – all courts in Ukraine.
These changes are very welcome. However, we expect a significant rise in number of registered advocates, since before this reform one was only required to become an advocate if he wished to practice criminal law. Therefore, as of right now there are a lot of unregulated legal practitioners (the numbers are in the thousands) which will become advocates in the nearest future.
The objective of the EU Anti-Corruption Initiative is to strengthen the capacity of the newly created anti-corruption institutions and to enhance external oversight over the reform process by the Verkhovna Rada, civil society and the media. Continue to read here.
European Parliament: Foreign affairs MEPs assess reform efforts in Albania and Bosnia and Herzegovina
Albania needs to implement EU-related reforms credibly, and ensure that its June parliamentary elections are free and fair, if it is to start EU accession negotiations, said Foreign Affairs Committee MEPs on Tuesday. In a separate resolution, they also urged Bosnia and Herzegovina to overcome its ethnic and political divisions and remain united throughout the EU membership application evaluation process, to prove that it is a functioning state.
Read here the full press release of the European Parliament.
This post follows-up the post The Republic of Moldova – access to the legal profession.
The national Parliament has abandoned a draft bill after opposition was publicly expressed by the Moldovan Bar Association and other institutions in Moldova (including the Moldovan Women Lawyers Association and the National Anti-Corruption Office) as well as the CCBE. The draft bill contained a clause permitting members of parliament with an experience of 10 years as law-makers to become lawyers without sitting a bar examination and following a traineeship. The CCBE letter to the Parliament of the Republic of Moldova is available here.
The President of the ECHR, Guido Raimondi, presented yesterday the activity report of the Court for 2016. The incoming cases considerably increased in the last year which is largely the result of the situation in three countries: Hungary and Romania, for complaints about detention conditions, and Turkey, especially since the dramatic attempted coup d’état in July 2016.
The following cases which relate to the legal profession and lawyers’ rights are mentioned in the report:
‘Cazan v. Romania‘ – concerning a lawyer that suffered ill treatment while representing his client at a police station. The decision is of interest in that it applies to Article 3 of the Convention the general principles of case-law relating to the protection of a lawyer. The Court emphasised the right of lawyers to exercise their professional duties without being subjected to ill-treatment. It also ruled that the burden of proof regarding the treatment of a lawyer representing a client at a police station lay with the State.
‘Yaroslav Belousov v. Russia‘ – concerning the applicant’s confinement in a glass cabin during his trial. The Court noted that this arrangement also made it impossible for the applicant to have confidential exchanges with his legal counsel, to whom he could only speak through a microphone and in close proximity to the police guards.
The Ibrahim and Others v. the United Kingdom – concerning delays in access to a lawyer during police questioning. The decision clarifies the two stages of the Salduz v. Turkey test: the Court must assess, in the first place, whether there were “compelling reasons” to restrict the right of access to a lawyer and, secondly, the impact of that restriction on the overall fairness of the proceedings. Restrictions on access to legal advice “[were] permitted only in exceptional circumstances, must be of a temporary nature and must be based on an individual assessment of the particular circumstances of the case”. The Court provided a non-exhaustive list of factors, drawn from the Court’s case-law, to be taken into account as appropriate when assessing the impact of the restriction on access to a lawyer on the fairness of the proceedings so as to guide operational decision-making.
For more information, see:
The enlargement process negotiations and neighbourhood policy will be at the core of the Maltese Presidency, Foreign Minister George Vella told the Foreign Affairs Committee [of the European Parliament] on 24 January. Several MEPs raised concerns about the situation in Turkey, and some asked that accession negotiations with it be frozen. “Turkey is not only a candidate country but also a key partner of the EU”, Mr Vella underlined. “It is of crucial importance to maintain an open dialogue, not to burn bridges”, he added. (See press release of the European Parliament.)
The CCBE has addressed a letter of concern to the Parliament of the Republic of Moldova, after being informed of a draft law on the reform of the Bar. The draft bill contains a provision that would allow members of parliament with more than 10 years experience in the field of law to become lawyers without having to sit the bar exam and without having to follow the otherwise mandatory traineeship for lawyers. The CCBE finds that such a provision is contrary to European and international standards and would have detrimental effects on the quality of legal services.
On 10 January 2017, the European Commission (EC) published a “Services Package” which aims at improving the services market across the EU (see press release). The Package contains a ‘Guidance on reform needs for Member States for regulation in professional services’ (see Communication and staff working document). It identifies opportunities for improving the regulatory environment. A restrictiveness indicator has been developed to analyse requirements of some regulated professions, including lawyers. The restrictiveness indicator is based on the following criteria:
- Regulatory approach
- Qualifications requirements
- Other entry requirements
- Exercise requirements
Chart on the restrictiveness as to the access and exercise of the profession of lawyer in all Member States:
Some of the recommendations concern all Member States, while others are also addressed to Member States not regulating a profession but where a risk of creation of new barriers was identified.
There are two recommendations that apply for all Member States:
- All Member States reserving legal advice should clarify the scope of the reserves so as to facilitate the provision of legal consultancy services by lawyers or other service providers, in particular for online services.
- All Member States should assess legal form and shareholding requirements, incompatibility rules and multidisciplinary restrictions, in particular taking into account the proportionality of these restrictions in relation to core principles, such as the independence of the profession, and to the corresponding supervisory arrangements. In addition, consideration should be given to the cumulative effect of such requirements in cases where their effects might be accentuated in the case of extensive reserves of activities (e.g. where legal advice is also part of the reserved activities).
The recommendations per profession identify needs for reform, some of which might have serious and even legal implications in cases where an infringement of EU law might be established.
The aim of the proposal for a proportionality test is ‘to ensure regulation is fit for purpose and does not create unjustified burdens’. It provides for a test to be used by Member States before adopting or amending national regulations of professions. Members States would have to thoroughly consider the need for regulation so as to fully appreciate the effects upon stakeholders and the broader business environment.