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

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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.

UN Human Rights Council Resolutions on the Independence of the Judiciary and Lawyers

June 23rd, 2017 § 0 comments § permalink

During its session from 6-23 June 2017, the UN Human Rights Council adopted Resolutions on the independence of the judiciary and lawyers, inluding the following:

1. Calls upon all States to guarantee the independence of judges and lawyers and the objectivity and impartiality of prosecutors, as well as their ability to perform their functions accordingly, including by taking effective legislative, law enforcement and other appropriate measures that will enable them to carry out their professional functions without interference, harassment, threats or intimidation of any kind;

6. Emphasizes that the Basic Principles on the Role of Lawyers provide that lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their function;

7. Emphasizes that lawyers should be enabled to discharge their functions freely, independently and without any fear of reprisal;

10. Expresses its deep concern about the significant number of attacks against lawyers and instances of arbitrary or unlawful interference with or restrictions to the free practice of their profession, and calls upon States to ensure that any attacks or interference of any sort against lawyers are promptly, thoroughly and impartially investigated and that perpetrators are held accountable;

11. Calls upon States, in collaboration with relevant national entities such as bar associations, associations of judges and prosecutors, and educational institutions, to provide adequate training, including human rights training, for judges, prosecutors and lawyers, both on initial appointment and periodically throughout their careers, taking into account regional and international human rights law and, where applicable and relevant, the concluding observations and decisions of human rights mechanisms, such as treaty bodies and regional human rights courts;

16. Calls upon States to ensure that legal provisions that are or have been adopted in relation to counter-terrorism or national security are consistent with the international obligations of the State concerning the right to a fair trial, the right to liberty, the right to an effective remedy for violations of human rights and other provisions of international law relevant to the role of judges, prosecutors and lawyers;

The full document can be download here.

UN Special Rapporteur on the Independence of Judges and Lawyers – Advance Report

June 16th, 2017 § 0 comments § permalink

In the advance report of 9 June 2017, the UN Special Rapporteur presents his perspective on the mandate.

The Rapporteur identified four broad areas of concern: (1) judicial indpendence; (2) corruption, organised crime and the indepdence judges and lawyers; (3) protection of the legal profession; and (4) restrictions to the right to a fair trial and due process of law.

Concerning the ‘protection of the legal profession’, the Rapporteur states:

89. The Special Rapporteur takes note of the existing barriers and threats faced by lawyers around the world and will analyse this issue in future reports.

119. Bar associations, institutions that have a vital role to play in upholding professional standards and ethics, must assume their responsibilities in this respect and embrace both the Basic Principles on the Independence of the Judiciary and the Basic Principles on the Role of Lawyers.

127. The Special Rapporteur encourages all States, bar associations and lawyers’ organizations to endorse the Basic Principles on the Role of Lawyers and to disseminate their content, so that they may be fully known by all authorities and members of the legal profession.

131. It is the responsibility of States to ensure security and physical protection for all members of the legal profession in order to guarantee the independence of the judiciary. One of the priorities must be to set out a protocol that would allow detecting and dealing with such circumstances.

The Report has been prepared for the Human Rights Council on 6-23 June 2017.

Links:

Post of 13 January 2017 on the UN Special Rapporteur.

UN Basic Principles on the Role of Lawyers.

Western Balkans: Criminal Law Reform Assessment Report, 2016

June 15th, 2017 § 0 comments § permalink

Introduction to the Assessment Report:

The Assessment Report presented in this publication was produced as a result of the Criminal Law Reform Project (CLRP), implemented from July 2015 to September 2016, by the Bar Association of Serbia in partnership with the National Chamber of Advocacy of Albania, Bar Association of Federation of Bosnia and Herzegovina (FBiH), Kosovo Bar Association and Macedonia Bar Association, as well as the civil society organization Partners for Democratic Change Serbia. (…)

It addresses the main problems defense advocates and their clients face in criminal proceedings in the Region. It further compares legal frameworks and practices in these systems and refers to international standards in that regard. The Report recommends changes to the respective provisions and practices that would enable better protection of rights of the accused and provide conditions for guaranteeing the right to a fair trial in criminal proceedings. Therefore, this report represents a useful advocacy tool for the bar chambers in the Region in their future advocacy efforts for reform of criminal proceedings. (…)

The Report can be downloaded here.

Statement by the Spokesperson of the EU External Action Service on the reported abduction and illegal detention of Azerbaijani nationals residing in Georgia

June 6th, 2017 § 0 comments § permalink

The alleged abduction and illegal arbitrary detention of Azerbaijani nationals, including human rights defenders, residing in Georgia followed by their arrest and prosecution in Azerbaijan, demands swift, thorough and transparent investigation…continue reading the article here.

ECHR new system for single judge decisions with more detailed reasoning

June 6th, 2017 § 0 comments § permalink

ECHR has launched a new system for single judge decisions with more detailed reasoning for inadmissible cases.
As from June 2017 instead of a decision-letter, applicants will receive a decision of the Court sitting in single judge formation in one of the Court’s official languages and signed by a single judge, accompanied by a letter in the relevant national language.
This decision will refer to specific grounds of inadmissibility.

Find more information here.

Human Rights Commissioner comments on the situation in Turkey

June 1st, 2017 § 0 comments § permalink

Third party intervention of the Commissioner before the Court of Human Rights – On 25 April 2017, the Council of Europe Commissioner for Human Rights, Nils Muiznieks, published his written observations concerning 34 cases related to events which have occurred since August 2015 in the context of counter-terrorism operations and curfews in South-Eastern Turkey. In his conclusions, the Commissioner notes: ‘there are clear indications that human rights defenders working on the human rights situation in South-Eastern Turkey during the curfews and counter-terrorism operations and assisting alleged victims in seeking justice have been subjected to various forms of reprisals and intimidation in retaliation for their legitimate activities’.