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.
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 26 and 27 October 2016, a conference entitled “Stronger when united: Kazakh lawyers facing new challenges” took place in Astana, Kazakhstan. The event was organised by the European Lawyers Foundation (ELF), the International Bar Association (IBA) and the Republican collegium of Advocates of Kazakhstan. As a follow-up to the conference, the ELF published presentations of the speakers, which could be accessed here.
On 20 October 2016, the World Justice Project (WJP) Rule of Law Index 2016 has officially been launched. The WJP Rule of Law Index is the world’s leading source for data on the rule of law, which measures how the rule of law is experienced in practical, everyday situations by the general public worldwide. Performance is measured across such primary rule of law factors as: Constraints on Government Powers, Absence of Corruption, Open Government, Fundamental Rights, Order and Security, Regulatory Enforcement, Civil Justice, and Criminal Justice.
According to the latest data, when compared globally, countries in the Western Europe and North America continue to top the WJP Rule of Law Index, with Denmark remaining the highest-ranked country in rule of law followed by Norway. Romania was the biggest mover in the region’s rankings, rising 4 positions to 32nd out of 113 countries worldwide over 2015 rankings. Meanwhile, France and Hungary each lost 3 positions, to 21st and 49th respectively. Georgia, ranked 34th, followed by Bosnia and Herzegovina and the former Yugoslav Republic of Macedonia. Apart from Albania, Turkey, and Russia, most countries in the Eastern Europe and Central Asia region remained largely unchanged since 2015. Albania dropped 9 positions to 72nd globally; Turkey fell 8 positions to 99th; and Russia moved down 6 positions to 92nd.
For the full report, please click here.
You can also access an interactive online platform for country-specific data by clicking here.
I. GENERAL INFORMATION
Belarus has a population of approximately 9.5 million and 1991 lawyers (in 2016).
According to the Belarusian legislation, only advocates are entitled to provide professional legal assistance. Other legal degree holders are not permitted to be defenders or representatives in criminal, civil and administrative proceedings.
Initial training of lawyers: Law degree. Traineeship of 3-6 months (for those with work experience in the legal field of at least 3 years) or 6-12 months (for those with less than 3 years of work experience) followed by the qualification exam.
The activity of an advocate in Belarus is licensed. Licenses are issued by the Ministry of Justice upon the decision of the Ministry Board on the advice of the Qualification Commission.
Continuous training: The issue of further continuous training of advocates is administered by the National Bar Association, which organises qualification upgrade courses.
The Ministry of Justice has the power to regulate the legal profession. In practice, the Ministry of Justice does not interfere with the activities of advocates except for licensing issues.
The Law determines the establishment and the competence of a separate body, which considers the advocates’ disciplinary liability issues: the Disciplinary Commission. The Disciplinary Commission is created by the supreme body of advocates’ self-management and is in charge of disciplinary proceedings.
IV. LEGAL AID
Free legal aid is provided on the basis of Art. 28 of the Law “On Advocacy and Advocatory Activities” and is funded by bar associations as well as from the budgets of the republican and (or) local authorities.
V. CURRENT CONCERNS OF THE BAR
Current concerns of the Bar and main challenges in the coming years: the status of a lawyer, legal aid and independence of the legal profession
Independence: One of the most fundamental issues in the work of an advocate is the regulation of relations between the profession and the state. An advocate needs to be independent so he or she can provide effective assistance.
An advocate, who feels the pressure, cannot provide adequate legal advice. For that reason, the question of the quality of work arises. If an advocate is not independent or is afraid to speak openly, the protection will be of poor quality.
For the full text of the article on the legal profession in Belarus, please click here.
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.
The CEPEJ-STAT, the European Commission for the Efficiency of Justice (CEPEJ) of the Council of Europe, published a report, which contains findings about the main trends observed in 45 European countries in the field of the functioning of judicial systems. In addition to the report, the CEPEJ-STAT opened access to a new interactive database, which enables viewing information by the country.
The report provides a detailed overview of the performance of the judicial systems, their budgets, the situation of judges, prosecutors, and lawyers, as well as the organisation of courts in the 45 participating member States and in one CEPEJ observer State (Israel).
As far as lawyers are concerned, the report contains data on the number of lawyers in each state or entity, with the specification whether this figure includes or not legal advisors who cannot represent their clients in court. Furthermore, the paper draws attention to the issue of lawyers’ monopoly on legal representation. For a more detailed information, please see the Chapter 3.4 (pages 158-163) of the report.
The report also gives information on the Annual public budget allocated to legal aid (pages 66-79).
The new interactive database is of particular interest as it has a specific section devoted to country-specific data, including a chapter on lawyers.
On 14 September 2016, Council of Europe Commissioner for Human Rights Nils Muižnieks presented his 2nd quarterly activity report 2016 to the Committee of Ministers and the Parliamentary Assembly.
Among other activities he mentioned his visit to Turkey. The latter focused on the fight against terrorism and support of human rights, with a special attention to such issues as the freedom of expression and the administration of justice. The Commissioner voiced his concerns about a possible weakening of the independence of the judiciary in the name of the fight against terrorism. Nils Muižnieks also “stressed the crucial role that human rights defenders and lawyers must play in such a difficult context, whilst deploring the stigmatising rhetoric and judicial pressure against them”.
At its 106th Plenary Session (Venice, 11-12 March 2016), the Venice Commission of the Council of Europe adopted the ‘Rule of Law Checklist’. The document discusses the interactions between the Rule of Law and democracy and human rights. It also develops the various aspects of the Rule of Law, such as: legality, legal certainty, prevention of abuses of powers, equality before the law and non-discrimination, and access to justice. Finally, it provides two examples of particular challenges to the Rule of Law (corruption and conflict of interest, and collection of data and surveillance).
The checklist is meant to be used as an assessment tool for a variety of actors. For instance, Parliaments and other State authorities when addressing the need and content of legislative reform, civil society and international organisations, including regional ones – notably the Council of Europe and the European Union.
In the chapter on access to justice, the document addresses the issue of independence and impartiality. In this context, particular attention is paid to the independence and impartiality of the Bar, as it plays a fundamental role in assisting the judicial system. It stresses that the main features of the Bar’s independence should be enshrined in the legislation, and that access to the Bar should be sufficiently open. In addition, there should be effective and fair criminal and disciplinary proceedings in place.
To access the checklist, please click here.
On 8 July 2016, the Third Republican Conference of the Bar Councils’ Delegates took place in Astana, Kazakhstan. In their resolution, the participants of the event noted that there is a growing number of cases of violation of lawyers’ rights by the Kazakh national authorities, which are undermining the independence of the Bar.
They also pointed out the attempts of violation of freedom of expression on matters of legality, law reform, and observance of human rights, including freedom of expression in social networks and the media.
In their common statement, the delegates addressed the national authorities, listing the measures which could strengthen the rule of law and guarantee everyone protection of their rights and freedoms, including the right to a fair trial. In particular, the delegates of the conference called on the Kazakh state authorities to observe the guarantees of lawyers’ professional activities set forth by international law and Kazakh national legislation.