The Rule of Law Checklist adopted by the Venice Commission

September 22nd, 2016 § 0 comments § permalink

At its 106th Plenary Session (Venice, 11-12 March 2016), the Venice Commission of the Council of Europe adopted the ‘Rule of Law Checklist’. The document discusses the interactions between the Rule of Law and democracy and human rights. It also develops the various aspects of the Rule of Law, such as: legality, legal certainty, prevention of abuses of powers, equality before the law and non-discrimination, and access to justice. Finally, it provides two examples of particular challenges to the Rule of Law (corruption and conflict of interest, and collection of data and surveillance).

The checklist is meant to be used as an assessment tool for a variety of actors. For instance, Parliaments and other State authorities when addressing the need and content of legislative reform, civil society and international organisations, including regional ones – notably the Council of Europe and the European Union.

In the chapter on access to justice, the document addresses the issue of independence and impartiality. In this context, particular attention is paid to the independence and impartiality of the Bar, as it plays a fundamental role in assisting the judicial system. It stresses that the main features of the Bar’s independence should be enshrined in the legislation, and that access to the Bar should be sufficiently open. In addition, there should be effective and fair criminal and disciplinary proceedings in place.

To access the checklist, please click here.

European Parliament urges Polish government to respect fundamental rights

September 22nd, 2016 § 0 comments § permalink

On 14 September, the European Parliament passed a resolution, which calls upon the Polish government to solve the country’s constitutional crisis within the timeframe set earlier by the Commission. MEPs pointed out that the paralysis of the Constitutional Tribunal and the refusal of the Polish Government to publish all its judgements represent a threat to democracy, fundamental rights and the rule of law in Poland. The European Parliament is also concerned about recent legislative developments with respect to such matters as the right to freedom of expression, procedural rights, the fundamental right to a fair trial, etc. Sharing these concerns, the CCBE had already stressed the importance of the secrecy of client’s communications with their lawyer in the letter to the speaker of the lower house of the Polish Parliament.

For more information, please click here.

Report on the conference in Tbilisi, Georgia

September 22nd, 2016 § 0 comments § permalink

An international conference on ‘Bar associations for independent, qualified and ethical exercise of the profession of lawyer’ took place on 20-21 June in Tbilisi, Georgia. In addition to Georgia, the following countries were represented at the event: Armenia, Azerbaijan, Belarus, France, Italy, Latvia, Lithuania, Luxembourg, Moldova, Poland, Romania, Russia, Turkey, the UK, Ukraine. The CCBE was represented by the CCBE First Vice President Ruthven Gemmell WS.

The conference was divided into three sessions:

  • Bar associations’ practices in lawyers training;
  • The roles of the bar associations in professional deontology;
  • Bar associations role in defending lawyers’ rights.

As the discussions during session on ‘Bar associations’ practices in lawyers training’ revealed, the participating bar associations have similar training models and systems. In the sphere of continuous training, all bar associations retain independence from point of view of planning, funding, and content of training courses. The main difference lies in the number of training units and time periods over which these units shall be accumulated.

At the session on ‘The roles of the bar associations in professional deontology’, it was emphasised that the functions of discipline and ethics should be separated. Among other points, the participants discussed the effectiveness of disciplinary sanctions, noting that they should be proportionate to the violation.

In the course of discussions during the session on ‘Bar associations role in defending lawyers’ rights’, it was identified that further activities should be carried out with regard to the following issues: freedom of expression, free access to client, safeguarding of confidentiality, for instance, inadmissibility of search of a lawyer’s office/home without informing a bar association, ensuring equal treatment by courts of defence lawyers and prosecution. The participants also spoke about importance of international cooperation.

To read the full report of the conference, please click here.

Kazakh lawyers voice concerns about violation of their professional rights

September 13th, 2016 § 0 comments § permalink

On 8 July 2016, the Third Republican Conference of the Bar Councils’ Delegates took place in Astana, Kazakhstan. In their resolution, the participants of the event noted that there is a growing number of cases of violation of lawyers’ rights by the Kazakh national authorities, which are undermining the independence of the Bar.

They also pointed out the attempts of violation of freedom of expression on matters of legality, law reform, and observance of human rights, including freedom of expression in social networks and the media.

In their common statement, the delegates addressed the national authorities, listing the measures which could strengthen the rule of law and guarantee everyone protection of their rights and freedoms, including the right to a fair trial. In particular, the delegates of the conference called on the Kazakh state authorities to observe the guarantees of lawyers’ professional activities set forth by international law and Kazakh national legislation.

Conference in Kazakhstan’s capital – Astana

September 12th, 2016 § 0 comments § permalink

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In partnership with the International Bar Association (IBA) and the Republican Collegium of Advocates of Kazakhstan, the European Lawyers Foundation (ELF) will organise a conference entitled “Stronger when united: Kazakh lawyers facing new challenges”. The event will take place on 26 and 27 October 2016 in Astana, Kazakhstan. The topics covered by the conference will focus on the importance of lawyer regulation in international legal services, international trade in legal services, an economic view of representation in courts, including representation by regulated lawyers, and continuous legal education.

Human rights defenders’ work is vital for redress to victims of enforced disappearance

September 2nd, 2016 § 0 comments § permalink

Nils-Muižnieks

In his post of 29 August 2016, Commissioner of the Council of Europe for Human Rights Nils Muižnieks pointed out to the importance of human rights defenders work for redress to victims of enforced disappearance. According to the Commissioner, the absence of effective investigations into violations committed by state and non-state actors against human rights defenders, targeted because of their human rights work, remains a major problem in a number of European states. The situation of human rights defenders is negatively affected by various factors such as judicial harassment, threats and intimidation, abusive control and surveillance, confiscation and destruction of working materials, unlawful arrest or detention, ill-treatment, disappearance, and death. Among the issues mentioned in ‘The way forward’, the Commissioner notes that “law enforcement officials, judges and lawyers should be trained on the importance of combating impunity, as well as standards, legal obligations and good practices related to cases of enforced disappearances” and “that human rights defenders should continue interacting and exchanging experiences and help each other to work on cases of missing persons and enforced disappearances”.

Non-implementation of the ECHR’s judgments

September 1st, 2016 § 0 comments § permalink

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In his post of 23 August, the Commissioner for Human Rights of the Council of Europe Nils Muižnieks stated that there is a growing number of judgements of the European Court of Human Rights which are pending implementation by the member states of the Council of Europe. This is inconsistent with the rule of law which requires all judgements to be implemented promptly, fully and effectively. Moreover, the Commissioner emphasised that prolonged non-implementation of the Court’s decisions is a “challenge to the Court’s authority and thus to the Convention system” as a whole. As possible solutions to the problem, Mr. Muižnieks proposed: improving domestic implementation of the Convention thus reinforcing subsidiarity, improving the efficiency of the procedures before the Court, and improving the Committee of Ministers supervision of the implementation process.

Turkey: continued concerns of the CCBE

August 23rd, 2016 § 0 comments § permalink

On 19 August 2016, the CCBE wrote a letter to President Erdoğan to express its concerns regarding the situation of lawyers in the country following the coup attempt of 15 July.

On 26 July, the Adana Bar Association reportedly released a statement referring to the “fear” and “concern” about possible reprisals felt by lawyers in Adana, the decision made by some not to provide legal assistance to people detained in relation to the failed coup, and the negative treatment they faced from the police and prosecutors if they represented the detainees. On 28 July, the CCBE was informed that about 50 lawyers were held incommunicado in Istanbul, with no access to legal representation. The CCBE was also made aware of the cases of lawyers Deniz Sürgüt and Orhan Kemal Cengiz, respectively tortured in detention and banned from travelling.

Furthermore, the CCBE expressed concerns about a government decree of 27 July allowing prosecutors to bar detainees from meeting with a lawyer during the first five days of police custody. A decree published on 23 July had already placed restrictions on the right to private communications with lawyers for suspects in cases of terrorism and organised crime, and reserved the authorities’ right to appoint another lawyer to represent the detainee.

A copy of the letter can be acessed here.

See also ‘International Organisations Issue Statement of Concern Regarding Turkey’s Post-coup Crackdown’ and ‘The CCBE voiced its concerns over the dismissal of judges in Turkey‘.

Violation of lawyers’ professional and human rights in Ukraine

August 1st, 2016 § 0 comments § permalink

28 July 2016, as a follow-up to new cases of lawyers’ rights violations in Ukraine, the CCBE sent a letter to the President of Ukraine, Petro Poroshenko. The reported violations that were brought to the CCBE’s attention include, but are not limited to: physical violence, violation of human and professional rights, unlawful search and seizure, refusal of an access to a client, unlawful wiretapping and identifying a lawyer with a client.

Given the crucial role of lawyers in the administration of justice, and in the maintaining and defence of the rule of law, the CCBE condemned the aforementioned violations. It pointed out that, in many of the cases mentioned, it was law enforcement authorities that committed the abuses. In this context, the CCBE stressed the importance of safeguarding lawyers’ rights, as their violation will inevitably have an impact on the right of Ukrainian citizens to a fair trial, as enshrined in the European Convention of Human Rights. As the lawyers are central in ensuring the protection of human rights and fundamental freedoms, the CCBE respectfully asked the Ukrainian authorities to investigate the facts mentioned in the letter, and to take all measures to prevent future abuses.

International Organisations Issue Statement of Concern Regarding Turkey’s Post-coup Crackdown

August 1st, 2016 § 0 comments § permalink

On 26 July 2016, together with the European Bars Federation (FBE) and the International Association of Lawyers (UIA), the CCBE has issued a joint statement expressing concerns over the disregard for the rule of law, democracy, human rights and fundamental freedoms in Turkey, in the aftermath of the failed coup and the state of emergency which was recently declared.

The organisations are extremely alarmed by the ongoing purge within the judiciary. They recalled that there can be no derogation from the following articles: Article 2 (Right to life), Article 3 (Prohibition of torture and inhumane or degrading treatment or punishment), Article 4 para. 1 (Prohibition of slavery), Article 7 (No punishment without law).

The CCBE, FBE and UIA underline that any statement by President Erdoğan that he would allow for a reinstatement of the death penalty is contrary to Turkey’s obligations under international law and its membership in the Council of Europe.