On 18 November 2015, the European Commission issued a Joint Communication to review the European Neighbourhood Policy (ENP), taking into account the events of recent years, which have demonstrated the need for a new approach, a re-prioritisation and an introduction of new ways of working. This Joint Communication concludes the formal consultation process on the review of the ENP. The new ENP will take stabilization, built on democracy, human rights and the rule of law and economic openness as its main priority in this mandate. More effective ways will be sought to promote democratic, accountable and good governance, as well as to promote justice reform, where there is a shared commitment to the rule of law, and fundamental rights. Over the course of 2016, the Commission intends to discuss the proposals contained in this Joint Communication, as well as subsequent positions taken by the EU, with partner countries, with a view to jointly determine the shape of their future relations. The full text of the Joint Communication can be read here. ENP countries are listed here.
“The former Yugoslav Republic of Macedonia” has a population of 2.000.000 and 2300 lawyers (in 2015). The Macedonian Bar Association was set up in 1945 and joined the CCBE in 2001.
Key information about the profession:
- Initial training of lawyers: Master in Law degree (5 years); traineeship 1 year if it is with law firm, court or prosecutor, 2 years if it is with companies. After the training period, the trainee must pass the judicial exam conducted by the Ministry of Justice. It is the same exam for lawyers, judges and prosecutors.
- Continuous training: the trainings are organised by the Bar and are accessible on the Bar’s website. They are run in cooperation with the judicial academy and international organisations.
- Specialisation: this depends on the individual needs of the practicing lawyers.
- Discipline: the following organs are in charge of the disciplinary proceedings in the Bar: the disciplinary prosecutor, disciplinary court, and the appeal council. All these organs are elected by the Annual Assembly of the Macedonian Bar Association with a 4 year mandate. The lawyer can challenge the final decision of the Appeal Council by appealing to the Administrative court of the country.
- Legal Aid: the law for free legal aid was implemented in July 2010. It is organised through the Ministry of Justice. Free legal aid is available in criminal and civil proceedings. It is granted in all judicial and administrative procedures, provided they concern matters of interest for the legal aid beneficiary, such as the rights in the area of social, health, pension and disability insurance, labor relations, protection of children, victims of domestic violence, protection of victims of criminal offenses, the protection of victims of trafficking, recognizing the right of asylum and legal property issues.
Current concerns of the Bar and main challenges in the coming years:
- Non equality of the parties in criminal proceedings.
- Extension of the scope of power of the notary public and the impact this has on the lawyers’ work.
- Representation in civil procedures by relatives of the parties and non-licenced representatives of the legal entities.
- Protection of the independence of the profession from interference by state organs and the need for equality of parties in all procedures.
- Protection of the scope of the work.
On 10 November 2015, the European Commission released the 2015 Enlargement package – a set of documents explaining its policy on EU enlargement, including country reports.
“While there has been important progress over the past year, major challenges remain. With respect to the rule of law, judicial systems are not sufficiently independent, efficient or accountable. Serious efforts are still needed to tackle organised crime and corruption, in particular to establish track records of investigations, prosecutions and final convictions. While fundamental rights are often largely enshrined in law, shortcomings persist in practice. Ensuring freedom of expression is a particular challenge, with negative developments in a number of countries. Public administration reform needs to be pursued with vigour, to ensure the necessary administrative capacity as well as to tackle high politicisation and a lack of transparency. The functioning of democratic institutions also requires attention. There is a need to work even more closely with local civil society actors to anchor reforms across society”.
Country specific assessment of the state of the judiciary:
• Albania‘s judicial system is at an early stage of preparation. Substantial shortcomings in the judicial system remain regarding independence and accountability of judges and prosecutors, enforcement of decisions, inter-institutional cooperation, and the administration of justice which remains slow. The next crucial steps for a comprehensive reform of the judicial system are the adoption of a new strategic framework followed by the drafting of the relevant institutional, legislative and procedural measures. The performance of the State Commission for Legal Aid needs to be enhanced so as to cope with the pressing needs of a considerable number of vulnerable citizens. Six regional legal aid offices are yet to be set up.
• Bosnia and Herzegovina has some level of preparation when it comes to consolidating a well-functioning judicial system. Following the adoption of the 2014-2018 Justice Reform Strategy, all activities relevant to its implementation need to be launched, including measures to improved judicial independence and efficiency. The country is still missing an effective free legal aid system to guarantee efficient access to justice.
• In Montenegro the judicial system is moderately prepared. Important steps were taken to align the legal framework with European standards, increasing professionalism and independence. A judicial reform strategy (2014-2018) and an accompanying action plan are in place. The full implementation of the new system of recruitment, professional assessment and promotion is now required.
• Serbia’s judicial system has reached some level of preparation. The quality and efficiency of the judiciary and access to justice are, however, hampered by an uneven distribution of workload, a burdensome case backlog and the lack of a free legal aid system. Serbia is asked adopt, inter alia, a new law on free legal aid and enable smooth implementation in cooperation with main stakeholders.
• The former Yugoslav Republic of Macedonia. The country’s judicial system has some level of preparation. The situation has been backsliding since 2014 because the achievements of the last decade’s reform process have been seriously undermined by actual and potential political interference in the work of the judiciary. The authorities now need to demonstrate real political will to ensure the full independence of the judicial system, including allowing the newly-appointed Special Prosecutor to work unhindered in investigating the wiretaps and their content. Legal aid is available under the 2009 Law on Free Legal Aid but its implementation is not yet widespread.
• Turkey‘s judicial system has some level of preparation. There has been no progress since early 2014. The independence of the judiciary and the principle of separation of powers have been undermined and judges and prosecutors have been under strong political pressure.
HELP recently published a video on admissibility criteria of the European Court of Human Rights and the HELP Programme. The 15-minute video gives a detailed overview of the admissibility criteria of the Strasbourg Court to give judges, lawyers and other legal professionals, as well as civil society actors and other interested parties practical information on the procedure used to bring a claim before the Court.
The video is available with subtitles in 14 different languages: English, French, Albanian, Armenian, Croatian, Czech, German, Italian, Lithuanian, Romanian, Russian, Spanish, Turkish and Ukrainian. It is accompanied by background documents on the relevant case-law of the Court, which are available here.
The video provides a useful and informative introduction for the self and distance learning courses offered on the HELP e-learning platform. It can be used as a training tool on the national level, as well as being supplemented by the extensive Admissibility Guide produced by the Court.
Further information can also be downloaded from the HELP website.
On 7 November 2015, CCBE President Maria Ślązak attended a conference, in Tbilisi, celebrating the 10th anniversary of the Georgian Bar Association. The theme of this conference was “Freedom of Lawyers’ Profession and Institutional Guarantees”. It was attended by expert speakers from the Parliament of Georgia, the Scottish/English Bar, the Netherlands Bar, the Belgian Bar, and the French Bar. There were also other international delegations present from the Polish, Belarus, Ukraine, Armenia and Azerbaijan Bars. The discussion centred on the freedom of the legal profession and lawyers’ rights in Georgia, the international guarantees of free advocacy and European standard, lawyers defending rights of lawyers, and institutional guarantees of legal practice. The speakers’ presentations were highly appreciated by Georgian lawyers who showed great interest in the developments and experience in other European countries. There was a fruitful discussion on the problems faced by Georgian lawyers in their daily practice, which highlighted the need to continuously raise issues at both national and international levels. To date, the CCBE has sent letters to various Georgian and European Authorities to raise concerns about the continuing violations of rights of lawyers in Georgia in February 2014, June 2014 and May 2015.
In the framework of the event, Maria Ślązak was awarded with the Order of Luarsab Andronikashvili for her generous contribution to the development of the Georgian Bar Association and to the protection of lawyer’s rights. Maria Ślązak is the first ever foreign lawyer to be awarded with the Order of Georgian Bar Association.
Moldova has a population of 3 555 000 and 1807 lawyers (in 2015). The Bar Association was set up in 1946 and joined the CCBE in 2008. It has twinning agreements with the National Association of Romanian Bars since 2012 and with the State Bar of New Mexico since 2014.
Key information about the profession:
- Initial training of lawyers: law degree (4 years); traineeship (18 months); there is an exam as a precondition for beginning the traineeship, and after the traineeship, the candidates are required to pass the final bar exam.
- Continuous training: advocates must undergo 40 hours of training per year. Training is provided by private bodies and donor organisations. All lawyers are subject to yearly control, and non-fulfilment of the training can lead to disciplinary sanctions.
- Specialisation: advocates are free to practice in any legal field. The Law on the Legal Profession recognizes the right of advocates to specialize and to practice law according to the specialization of their choice. However, there is no particular specialisation system.
- Discipline: the Committee on Ethics and Discipline of the Bar is in charge of disciplinary proceedings.
- Legal Aid: it is financed through the state budget and donors contributions. Both criminal and civil law cases are covered by legal aid system. There is a special body created according to the law (National Legal Aid Council). The Bar delegates 2 members to sit at the board.
Current concerns of the Bar and main challenges in the coming years:
- Current concerns: the Bar is worried about certain legal initiatives oriented to allow non-advocates to provide legal assistance in court proceedings. The CCBE shared the Bar’s concern (see CCBE letter of April 2015).
- Main challenges: Improving the quality for professional qualification of advocates; Strengthening the community of advocates; Creating better conditions for advocate’s activity; Improving the management efficiency/transparency of the Bar’s governing bodies; Bettering compliance by advocates with ethics rules.