ECHR: ‘Decision to restrict communication between lawyer and accused on the grounds of protecting States secrets was contrary to the Convention’

July 27th, 2017 § 0 comments § permalink

In 2014 a former member of the Netherlands security service (AIVD) was charged of having disclosed state secrets to unauthorised persons. Prior to his trial, he was informed by the secret service that it would be constitutive of a further criminal offence if he were to discuss the matters covered by his duty of secrecy with anyone including his counsel.

During the appeal proceedings he and his counsel complained over the security service restrictions affecting the defence.

The applicant complained before the European Court of Human Rights, claiming that his trial had been unfair and that (inter alia) Article 6 of the European Convention on Human Rights (right to a fair trial) had been violated. He stated that the security service had exercised decisive control over the evidence, restricting his and domestic courts’ access to it and controlling its use, thus preventing him from instructing his defence counsel effectively.

The Court held that without professional advice, an individual who was facing serious criminal charges could not be expected to weigh up the benefits of disclosing his case in full to a lawyer against the risk of further prosecution for doing so. Consequently, there had been a violation of Article 6 §§ 1 and 3 (c) as the fairness of the proceedings had been irretrievably compromised by the interference with communication between the applicant and his lawyer.

Read more here.

European Commission acts to preserve the rule of law in Poland

July 26th, 2017 § 0 comments § permalink

Brussels, 26 July 2017 – Press release of the European Commission

The Commission substantiates its grave concerns on the planned reform of the judiciary in Poland in a Rule of Law Recommendation addressed to the Polish authorities. In the Commission’s assessment, this reform amplifies the systemic threat to the rule of law in Poland already identified in the rule of law procedure started by the Commission in January 2016. The Commission requests the Polish authorities to address these problems within one month. The Commission asks the Polish authorities notably not to take any measure to dismiss or force the retirement of Supreme Court judges. If such a measure is taken, the Commission stands ready to immediately trigger the Article 7(1) procedure[1] – a formal warning by the EU that can be issued by four fifths of the Member States in the Council of Ministers…

Continue to read here the full press release of the European Commission.

Poland: President will not sign Act on the Supreme Court and Act on the National Council of the Judiciary

July 25th, 2017 § 0 comments § permalink

On 24 July 2017, the President of the Republic of Poland declared that he will veto the bills on the Supreme Court and on the National Council of the Judiciary. However, the Act amending the Law on the Common Courts Organisation will be signed. Read more here.

Poland: CCBE expresses serious concerns over recent Acts on the judiciary

July 20th, 2017 § 0 comments § permalink

On 18 July 2017, the President of the CCBE addressed a letter to the President of the Republic of Poland expressing the CCBE’s concerns about the amendments adopted to the Polish Act on the National Council of the Judiciary and the Act amending the Law on Common Courts Organisation, as well as the new draft Act on the Supreme Court which the Polish Parliament received.

The CCBE points out that:

– The amendment to the Act of the National Council of the Judiciary gives a substantial role to politicians in the selection and appointment of judges, which contravenes the constitutional principle of independence of the judiciary.

– The Act amending the Law on the Common Courts Organisation – which changes the rules of appointing and recalling presidents of courts – increases the authority of the Minister of Justice by enabling the Minister to arbitrarily recall all the presidents of courts in Poland during their term of office.

– The draft Act on the Supreme Court foresees that all judges of the Supreme Court (save for those designated by the Minister of Justice) will retire immediately upon when the said Act enters into force.

The CCBE calls upon the President of the Republic of Poland to use the right of veto and to refuse to sign the above-mentioned amendments, as they are threatening the autonomy and independence of the judiciary.

Read the CCBE letter here.

The European Commission also discussed the latest developments with regard to the Polish judiciary and related legislative acts. In the Commission’s view “If implemented in their current form, these laws would have a very significant negative impact on the independence of the judiciary and would increase the systemic threat to the rule of law in Poland.” On 19 July 2017, the College of Commissioners held a first in-depth discussion on these new developments, expressed its serious concerns, and looked into the legal and political options available to the Commission to act upon these concerns. The Commission will revert again to this matter next week. For more information, click here.

UN experts urge the Government of Turkey to release all rights defenders

July 19th, 2017 § 0 comments § permalink

On 5 July 2017 nine human rights defenders and two foreign trainers, including the director of Amnesty International in Turkey, attending a workshop for human rights defenders in Turkey, were detained over alleged membership of a terrorism organisation.

On 14 July 2017 a group of United Nation experts called on the Turkish Government to immediately release them. Amongst others, the experts “expressed concern at reports that a confidential investigation has been opened by the Prosecutor against the group, preventing defence lawyers from accessing the case files, and at reports that a smear campaign is being conducted against them.”

Read more information here.

In June 2017 the Chair of Amnesty International in Turkey, Taner Kiliç, and 22 other laywers were arrested. The CCBE addressed its concerns to the President of Turkey.

Read more here.

ECHR: refusal of the Lithuanian Bar Association to readmit advocate V. Lekavičienė to the Bar had been justified

July 11th, 2017 § 0 comments § permalink

Vladislava Ramunė Lekavičienė was admitted to the Lithuanian Bar Association as an advocate until December 2003, when her name had been removed  from the list of practicing advocates due to a pending criminal case against her. In August 2004, Ms Lekavičienė was convicted of over thirty instances of forgery and fraud, relating to untruthful claims that she had provided legal services within the framework of the State-paid legal-aid scheme.

In August 2007, after the expiration of her conviction, she requested readmission to the Lithuanian Bar Association. The Bar refused her request on the grounds that she did not possess the requisite high moral character.

After exhaustion of the domestic courts Ms Lekavičienė appealed the refusal before the European Court of Human Rights, claiming that it violates Article 8 (right to respect for private and family life) of the European Convention on Human Rights.

On 27 June 2017, the European Court of Human Rights held, unanimously, that there had been no violation of Article 8 of the Convention. The Court acknowledged that the refusal to accept Ms Lekavičienė to the Bar constituted an interference with her right to respect for her private life. The Court found, however, that the interference had been justified, as it had not exceeded “what had been “necessary in a democratic society” for protecting the rights of others by ensuring the good and proper functioning of the judicial system.” The Court states, inter alia, that “it is not unreasonable to hold that the application’s behaviour when systematically cheating the court system and the State out of sums of money also showed her disrespect for her colleagues and peers, thus undermining the entire ideal of justice. The Court therefore inclines to the view that the reasons given by the Court of Appeal and the Supreme Court not to hold the applicant as being of high moral character (…).

Read the judgement here.

Council of Europe: Report by the Secretary General, 2017

July 4th, 2017 § 0 comments § permalink


The Report, which contains a Chapter on Lawyer Professionalism (pages 31-32), recalls that “In any judicial system, the role of lawyers is crucial for ensuring effective access to justice and the full enjoyment of the principle of equality of arms as guaranteed by Article 6 of the Convention.”

The Report sets out ‘institutional criteria’ (including: “Lawyers can discharge their duties without improper interference.”, “Entrants to the legal profession have appropriate education and training.”) and it contains brief findings on several issues: monopoloy on legal representation, quality standards, lawyers’ fees, organisation of the profession.

The Report specifically mentions the Council of Europe cooperation projects with the Georgian and Moldovan Bars:

“A co-operation project implemented with the Bar Association of Georgia has focused on the exercise of the profession of lawyer in line with Committee of Ministers Recommendation No. R (2000) 21 on the freedom of exercise of the profession of lawyer, and on the development and dissemination of a code of ethics for lawyers. The bar association also sought, and used, the Council of Europe’s input in respect of the framework for admission to the profession of lawyer and the self-administration of the profession. Similar work has been undertaken in the Republic of Moldova.”

The Report can be downloaded here.