The legal profession in Belarus

October 19th, 2016 § 0 comments § permalink

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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.

II. TRAINING

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.

III. DISCIPLINE

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.

The rule of law chapters will be at the fore of the EU accession negotiations

October 11th, 2016 § 0 comments § permalink

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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 published a report on European judicial systems

October 7th, 2016 § 0 comments § permalink

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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.

Council of Europe Commissioner reports on the current situation with human rights in Europe

October 4th, 2016 § 0 comments § permalink

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”.

The Rule of Law Checklist adopted by the Venice Commission

September 22nd, 2016 § 0 comments § permalink

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.

Kazakh lawyers voice concerns about violation of their professional rights

September 13th, 2016 § 0 comments § permalink

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.

Conference in Kazakhstan’s capital – Astana

September 12th, 2016 § 0 comments § permalink

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In partnership with the International Bar Association (IBA) and the Republican Collegium of Advocates of Kazakhstan, the European Lawyers Foundation (ELF) will organise a conference entitled “Stronger when united: Kazakh lawyers facing new challenges”. The event will take place on 26 and 27 October 2016 in Astana, Kazakhstan. The topics covered by the conference will focus on the importance of lawyer regulation in international legal services, international trade in legal services, an economic view of representation in courts, including representation by regulated lawyers, and continuous legal education.

Human rights defenders’ work is vital for redress to victims of enforced disappearance

September 2nd, 2016 § 0 comments § permalink

Nils-Muižnieks

In his post of 29 August 2016, Commissioner of the Council of Europe for Human Rights Nils Muižnieks pointed out to the importance of human rights defenders work for redress to victims of enforced disappearance. According to the Commissioner, the absence of effective investigations into violations committed by state and non-state actors against human rights defenders, targeted because of their human rights work, remains a major problem in a number of European states. The situation of human rights defenders is negatively affected by various factors such as judicial harassment, threats and intimidation, abusive control and surveillance, confiscation and destruction of working materials, unlawful arrest or detention, ill-treatment, disappearance, and death. Among the issues mentioned in ‘The way forward’, the Commissioner notes that “law enforcement officials, judges and lawyers should be trained on the importance of combating impunity, as well as standards, legal obligations and good practices related to cases of enforced disappearances” and “that human rights defenders should continue interacting and exchanging experiences and help each other to work on cases of missing persons and enforced disappearances”.

Non-implementation of the ECHR’s judgments

September 1st, 2016 § 0 comments § permalink

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In his post of 23 August, the Commissioner for Human Rights of the Council of Europe Nils Muižnieks stated that there is a growing number of judgements of the European Court of Human Rights which are pending implementation by the member states of the Council of Europe. This is inconsistent with the rule of law which requires all judgements to be implemented promptly, fully and effectively. Moreover, the Commissioner emphasised that prolonged non-implementation of the Court’s decisions is a “challenge to the Court’s authority and thus to the Convention system” as a whole. As possible solutions to the problem, Mr. Muižnieks proposed: improving domestic implementation of the Convention thus reinforcing subsidiarity, improving the efficiency of the procedures before the Court, and improving the Committee of Ministers supervision of the implementation process.

International Commission of Jurists (ICJ) mission to assess independence of lawyers in Azerbaijan

July 4th, 2016 § 0 comments § permalink

On 20-23 June, the ICJ conducted a research mission to Azerbaijan to assess the situation of the legal profession in the country. For more information, please follow this link.