The Council of Europe’s Commissioner for Human Rights has addressed an open letter to the Polish Parliament’s lower chamber. The letter calls the Sejm representatives to reject the proposed amendments to the Act on the National Council for the Judiciary, due to concerns over the independence of the judiciary. Read the announcement here.
EEAS has published on the 13 March the 2017 report on the implementation of the Association Agreement between the EU and Moldova. The report is based on the Association Agenda and the steps taken to implement reforms as per the agreed areas of cooperation. The first area “Political dialogue, good governance and strengthening institutions” concerns, inter alia, the subject of human rights and fundamental freedoms, which the report concludes requires tackling weaknesses in the justice sector. It is also pointed out: “Perceived political interference in the judiciary and law enforcement is a systemic impediment to social and economic development. There have also been instances of judges being prosecuted for their decisions. The same goes for lawyers engaged in high-profile cases. The EU and other international partners have questioned the wide-spread use of pre-trial detention, especially in cases linked to participation in demonstrations.” Read the full document here.
The CCBE has received several reports from the Moldovan Bar Association of cases in which professional rights of lawyer were breached. A letter addressed to public authorities in Moldova regarding these cases was sent beginning January 2017.
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:
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.)
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:
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 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.
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.
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.”
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.
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.