January 27th, 2017 § § 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. 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:
Annual report 2016 (provisional)
Violation by article and state
Analysis of statistics
January 27th, 2017 § § 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.)
January 26th, 2017 § § 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.
December 12th, 2016 § § permalink
The High Representative of the EU for Foreign Affairs and Security Policy, Federica Mogherini, has issued a declaration on the occasion of Human Rights Day, which is celebrated by the international community on the 10th of December each year. The EU’s foreign secretary has voiced support for the United Nations’ call upon people to stand up for someone’s rights and has reaffirmed the EU’s commitment in promoting human rights globally, namely the rights of migrants and refugees.
The Human Rights Day commemorates the adoption and proclamation of the Universal Declaration of Human Rights at the United Nations General Assembly on the 10th of December 1948. It is celebrated yearly with a different theme and by various initiatives around the world involving civil society groups, NGOs and government institutions. The CCBE is granting every year a human rights award to lawyers who are particularly active in the defence of human rights and the rule of law. More on CCBE’s 2016 Human Rights Award, read here.
November 10th, 2016 § § permalink
On 9 November 2016, the European Commission adopted its annual Enlargement Package, which assesses the state of implementation of key political and economic reforms in the countries of the Western Balkans and Turkey.
All reports contain a section on “Judiciary and fundamental rights” and “Justice, freedom and security” and some reports, most importantly the report on Turkey, specifically refer to the situation of lawyers and the lawyer’s profession.
Read more here about the reports’ references to lawyers, the legal profession and legal aid.
October 28th, 2016 § § permalink
The European Commission Support Group for Ukraine published today an Activity Report on the first 18 months of its work. Amongst others, the report provides a summary on reforms spanning anti-corruption and rule of law: “In the justice sector, Ukrainian reform efforts focused on amendments to the Constitution (concerning the judiciary) and – partially linked to that – the vetting of judges and prosecutors. (…) Another main area of reform is the system for the enforcement of judgments. Draft legislation envisages the introduction of a profession of private bailiffs which would coexist for a transitional period with the state enforcement officers. (…) Latterly it has been decided that an overall programme in support of rule of law reform should be developed, in order to bring EU resources to bear in a more comprehensive and effective manner. The new programme is due to start in 2017.”
The report can be downloaded here; see also the EC fact-sheet.
October 11th, 2016 § § permalink
On 26 September 2016, the European Parliament published on its website a briefing entitled “The Western Balkans and the EU. Enlargement and challenges”. It is explained in the paper that evolving enlargement policy of the EU has “set the bar for accession higher for the current candidate, and potential candidate countries – Albania, Bosnia and Herzegovina, the former Yugoslav Republic of Macedonia, Kosovo, Montenegro and Serbia”. One of the novelties is that a new EU approach brings rule of law to the fore, and as from now the rule of law Chapters 23 and 24 will be opened first in the negotiation process. An argument in favour of this approach is that post-accession monitoring has not proved efficient.
November 30th, 2015 § § permalink
Commissioner Johannes Hahn
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.
November 23rd, 2015 § § permalink
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.