Moldova – Access to legal profession

January 30th, 2017 § 0 comments § permalink

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.

European Court of Human Rights 2016 Report

January 27th, 2017 § 0 comments § permalink

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. Russiaconcerning 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:

Annual report 2016 (provisional)

Press conference

Violation by article and state

Analysis of  statistics

EU: Enlargement and neighbourhood policy are at the core of the Maltese Presidency

January 27th, 2017 § 0 comments § permalink

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 Republic of Moldova – access to the legal profession

January 26th, 2017 § 0 comments § permalink

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.

The letter refers to the CCBE Training Outcomes for European Lawyers. Find the letter here and the training outcomes here.

European Commission: Reform Needs in Professional Services

January 26th, 2017 § 0 comments § permalink

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:

Non-regulatory barriers are not reflected in the restrictiveness indicator.

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.

The Services package also contains a proposal for a services e-card and a proposal for a services notification procedure.

New UN Special Rapporteur on the independence of Judges and Lawyers

January 13th, 2017 § 0 comments § permalink

The newly appointed person serving the post is Diego García-Sayán (Peru) (starting with January 2017). The special rapporteur reviews individual complaints and reports on attacks to the independence of judges and lawyers. It appeals to governments, conducts country visits and presents annual reports. This position was created by the UN in 1994 in response to increasing reports on attacks on the independence of judges, lawyers and court officials. The position is assumed by the Human Rights Council within the UN and the mandate has been renewed several times since 1994.

Diego García-Sayán New UN Special Rapporteur on the independence of lawyers and judges

The office of the Special Rapporteur gathers information on relevant cases through a survey, the results of which have been published in an annual report from August 2016. It contains a summary of recent activities of the Special Rapporteur with notes on the international rights for lawyers, references to court cases and recommendations to governments, bar associations and international legal professional associations. Continue to read here.

CCBE supports BAK in procedural law reform

January 13th, 2017 § 0 comments § permalink

The Bar Association of Kosovo (BAK) has requested support from the CCBE regarding the Law on Civil Procedure Code, namely the provisions related to representation in courts. The current provisions would allow any person in their capacity to act to represent a person in court, which both BAK and CCBE find very problematic. Moreover, the CCBE draws attention to the fact there are dissuasive conditions for lawyers to represent themselves and participate in the work of the Judicial and Prosecutorial Councils in Kosovo. The conditions are such that lawyers that become members of these councils are obliged to suspend their activity as lawyers for a period of 5 years. For more information, read the letter here.

CCBE addresses Ukrainian National Bar Association concerns

January 12th, 2017 § 0 comments § permalink

The CCBE addressed concerns communicated by the Ukrainian National Bar Association during the last weeks of December in a letter sent to the president of Ukraine, Mr. Petro Poroshenko. The UNBA has informed the PECO committee that a bill was passed in the morning of the 21 December that would amend provisions in the Law on Advocacy, especially regarding the lawyers’ self-governing bodies’ discretion on establishing the sums and the procedure of paying yearly Bar membership fees. On another note, the CCBE was concerned with worrying information from Ukraine regarding defamatory  language addressed to lawyers in national media and in the national parliament. The UNBA feels that such language influences negatively public opinion on the legal profession. The UNBA has become an observer member of the CCBE in December 2016.

Violation of professional rights in Moldova

January 12th, 2017 § 0 comments § permalink

The Moldovan Bar Association has issued a public statement and has addressed an open letter to Moldovan authorities on the subject of ongoing violations of lawyers’ rights. The Bar is concerned with numerous cases in which criminal proceedings are started or resumed against lawyers’, breaches of the professional independence and identification of lawyers’ with their clients. The open letter also refers to cases in which Moldovan lawyers are prevented from accesing their clients in detention centers, a situation that is continuing since September 2016. The CCBE has addressed a letter of concern to several authorities in the Republic of Moldova.

 

‘EU-Council of Europe Support for the Moldovan Bar’ rounds up

January 6th, 2017 § 0 comments § permalink

On the 21 of December, the ‘Support for the Moldovan Bar’ component rounded up its strategy implementation in a conference organized in Moldova’s capital Chisinau. It registered positive developments in strengthening lawyers’ engagement in society, as well as in international relations with other organizations, including the CCBE. The component is a support group for the national Moldovan Bar and has been active since March 2015. More information can be found here.