C Explanatory memorandum
by Mr Bashkin, Rapporteur
1 Introduction
1.1 Procedure
1 On 13 October 2017, the motion
for a resolution on “the principles and guarantees of advocates” (
Doc. 14376) was referred to the Committee on Legal Affairs and
Human Rights (the committee) for report. At its Paris meeting on
12 December 2017, the committee appointed Mr Georgyii Logvynskyi
as the rapporteur. Owing to the resignation of Mr Logvynskiy, at
its Berlin meeting on 15 November 2019 the Committee appointed me
as the rapporteur. At its meeting on 30 January 2020, the committee
then held a hearing with three experts – Mr Vakhtang Fedorov of
the Moscow Bar Association, Mr Laurent Pettiti of the Council of
Bars and Law Societies of Europe, and Ms Maria Ślązak of the European
Association of Lawyers – immediately prior to which I presented
a revised version of Mr Logvynskyi’s introductory memorandum.
1.2 Scope
of the report
2 The Council of Europe has consistently
acknowledged the vital contribution of lawyers to the effective administration
of justice. Lawyers play a central role in protecting human rights
and defending victims of violations. To ensure adequate protection
of the rights of individuals and public trust in the proper administration
of justice, the legal systems of all Council of Europe member States
are required by the European Convention on Human Rights (ETS No.
005, “the Convention”), as interpreted by the case law of the European
Court of Human Rights (the Court), to respect and guarantee the
free exercise of the profession of lawyer.
3 The motion notes the “numerous cases of violations of advocates’
rights” in recent years. It recalls the
United
Nations Basic Principles on the Role of Lawyers (1990) (the UN Basic Principles) that define and promote those
rights, as well as Assembly
Resolution
2154 (2017) “Securing access of detainees to lawyers”. The motion
proposes that the Assembly call on “all competent bodies of the
Council of Europe and the member States to take steps aimed at providing
and protecting the principles and guarantees of advocacy.”
4 In addition to the UN Basic principles, Council of Europe
member States have subscribed to the minimum standards currently
laid out in the
Recommendation
No. R(2000)21 of the Committee of Ministers on the freedom of exercise
of the profession of lawyer (which itself ‘has regard’ to the UN
Basic Principles). However, whilst substantively quite complete,
these instruments are non-binding. Although international legal instruments
clearly prohibit State interference in the legal profession, the
specific activities that amount to prohibited ‘interference’ are
not always clearly identified. Also, ensuring the protection of
lawyers engages both a negative obligation not to interfere as well
as a positive obligation to establish a domestic legislative framework
guaranteeing efficiency of lawyers’ work. In particular, this involves
a commitment to investigate threats to lawyers’ lives and to prosecute
harmful actions carried out against lawyers, regardless of the source of
the threat. Given increasing concern for the situation of lawyers
in a number of member States, the Assembly in 2018 called on the
Committee of Ministers to draft a legally binding instrument, in
the form of a Council of Europe convention on the profession of
lawyer, which would also include a much-needed control mechanism.
5 The definition used in preparing this report is that proposed
in the Committee of Ministers’
Recommendation
No. R(2000)21 which describes a lawyer as a “person qualified and
authorised according to the national law to plead and act on behalf
of his or her clients, to engage in the practice of law, to appear
before the courts or advise and represent his or her clients in
legal matters.”
1.3 Objectives
of the report
6 The report shall update the
situation regarding lawyers’ safety and independence in Council
of Europe member States since the adoption of Assembly
Recommendation 2121 (2018) in January 2018
. Additionally, the
report is intended to confirm the urgent need to draft and adopt
a European convention on the profession of lawyer. The report and
the recommendation based on it should call upon the Committee of
Ministers to carry out this work as swiftly as possible. Another
objective of the report is to call on the Council of Europe’s member States
pre-emptively to amend their national legislations in order to guarantee
the working principles and basic rights of lawyers in advance of
the adoption of the said convention on the profession of lawyer.
7 It should be noted that, despite certain improvements since
the previous discussion of the introductory memorandum, the overall
situation regarding lawyers’ safety and independence has not improved
significantly.
2 Lawyers under threat – recent examples
8 In
its Recommendation 2121 (2018), the Assembly expressed its “utmost concern that harassment, threats
and attacks against lawyers continue to occur in many Council of
Europe member States and are even increasing in some of them, where
they have become widespread and systematic and are apparently the
result of deliberate policy”. The call for urgent action to enhance
the protection of lawyers remains as necessary now as it was then.
9 In several countries lawyers continue to be targeted for their
involvement in human rights-related cases, such as defending the
rights of refugees, asylum seekers and migrants, women, members
of national and linguistic minorities, and LGBTI persons. They have
also been targeted for their work denouncing government unaccountability
or corruption, or for representing particular individuals (terrorist
suspects, opposition politicians, civil society activists, and independent
journalists). There are reports that lawyers were identified with
the causes advocated or crimes committed by the individuals they
were defending.
10 Attacks against lawyers’ personal safety and liberty often
take place against a general background of lack of respect for the
rule of law. Lawyers may face administrative and judicial harassment,
including abusive interferences with their professional rights and
privileges. This may be the result of misuse of national legal instruments
on combating terrorism or money laundering which allow for interferences
with lawyers’ rights such as intrusions into privileged lawyer-client
communications, blacklisting or travel bans.
11 Furthermore, it was reported that lawyers were involved by
the prosecuting authorities as inciting agents (“agents provocateurs”):
in such cases, lawyer-client confidence and confidentiality was
broken ab initio, and the
lawyers’ reports were further used for prosecution. Needless to
say that the above situations should be considered as particularly
grave violations of the right to a fair trial.
12 We should agree with the proposal made by Mr Logvynskyi in
the text of his introductory memorandum that the situations listed
in the earlier report by Ms Lahaye-Battheu
Note may be modified and that it is not exhaustive.
Consequently, I believe it is expedient to provide an updated list
of negative examples.
13 At the hearing on 30 January 2020, Mr Federov identified seven
categories of problems faced by advocates in different Council of
Europe member States. The first was interventions by investigative authorities,
entering offices, searching files and confiscating confidential,
case-specific documents. This was a systemic problem in many countries.
Second, interception of confidential telecommunications and eavesdropping
on confidential conversations between lawyers and detainees. Third,
threats and violence against lawyers, which was becoming systemic
in some countries where lawyers were now themselves in need of protection
when protecting their clients’ rights. The fourth problem was advocates
being summoned as witnesses in cases against their clients and required
to explain why and how they were representing their clients. Fifth,
identification of lawyers with the offences of which their clients
were accused. Sixth, lawyers not being given information relevant
to their clients’ case, which violated equality of arms and made
the trials unfair. The seventh problem was interference by the authorities
in the work of Bar associations. All of these problems occurred
frequently, and statistics showed that they were systemic in many
countries.
14 Violations of lawyer–client privilege, are among the most
typical examples. According to the materials of the Court’s work
the manifestations of this violation are classified as follows:
- violating lawyer–client privilege
during criminal investigations,
- opening and studying lawyer–client correspondence when
the client is remanded,
- searches in lawyers’ offices.
15 Quite frequently, lawyers’ freedom of expression in courthouses
is violated. In some cases, lawyers face physical violence as well
as verbal opposition from officials or representatives of the parties
to the legal proceedings, or threats of such violence. One of the
most common violations of lawyer rights is summoning lawyers for
questioning by investigative bodies as witnesses on the cases in
which they are providing legal assistance to their clients.
16 The present report and the draft resolution and recommendation
are not intended to incriminate or influence a particular State
politically. The author of the report sees it as his principal objective
to help various member States to gear their national legislations
and law enforcement practices towards improving the conditions and
guarantees of lawyers’ work in full compliance with the European
principles of the rule of law, respect for human rights, and people’s
right to an independent and fair trial.
17 The Court practice demonstrates that a significant share of
complaints about the summoning of lawyers for questioning as witnesses
in their clients’ cases are related to the Russian Federation. There
are known cases of Russian lawyers’ complaints concerning wrongful
attempts by law enforcement bodies to evaluate and regulate lawyers’
fees followed by criminal prosecution.
18 It should be said that lawyers encounter problems of various
degrees in fulfilling their professional duties in various European
regions, including the West, the Balkans and the southern regions.
Instances of searches in lawyers’ offices have occurred, for instance,
in France. The number of searches of lawyers and their offices in
the French Republic is growing: 26 in 2016, 31 in 2017, 44 in 2018.
19 In the Netherlands, the murder of the lawyer who represented
a key witness in the case against a local organised criminal group
in September 2019 caused a wide response.
Note This was
followed in August 2020 by a shooting incident at another law firm.
Note In connection with these incidents,
the Dutch Bar Association indicated the specific danger that lawyers
are exposed to in the performance of their duties,
Note and stressed the need to take additional
measures to ensure their safety.
Note
20 Italy’s justice system, known for its slowness, which has
given rise to numerous findings of violations by the Court, makes
it difficult for lawyers to provide effective assistance to their
clients. Frequently, court proceedings in Italy take years. This
afflicts not only the parties to the proceedings but also the lawyers.
21 The Serbian and Belgrade Bar Associations have expressed their
concern at the risk of violence against lawyers. In July 2018, a
Serbian lawyer was killed.
Note
22 In Greece, it has been reported that a number of lawyers were
placed under investigation after monitoring possible push-backs
of migrants in the Evros region. It is also claimed that lawyers
representing applicants before the Court have been subjected to
harassment by law enforcement authorities.
Note
23 The draft law on amendments and additions to the law “on measures
to counter money laundering” submitted to the People's Assembly
of the Republic of Bulgaria in February 2019 raised serious concerns amongst
the Bulgarian legal community. A wave of protests by representatives
of this profession against the obligation to transmit data about
their clients to the State Agency for national security, which includes
the financial intelligence unit responsible for receiving and analysing
reports of suspicious transactions that may involve money laundering,
received wide coverage in the national media.
Note
24 In 2019, nearly 40 national and international lawyers’ associations
issued a joint statement on the situation of lawyers in Turkey stating
that since July 2016, 1 546 Turkish lawyers had been prosecuted
and 594 lawyers had been arrested.
Note It can also be recalled that the
Turkish Criminal Procedure Code and Law on the Execution of Sentences
and Security Measures authorise the police to prevent lawyers from
meeting with clients during the first 24 hours of their police custody.
25 A significantly greater number of cases of interference in
lawyers’ affairs or of pressure being exerted on them in the countries
of Eastern Europe is cause for concern. Despite the growing number
of professional lawyers in Azerbaijan, the country’s ratio of lawyers
per population, the lowest among member States, continues to be
cause for concern.
Note There have been allegations regarding
disciplinary charges against lawyers and detention of lawyers for
alleged financial violations. The Court indicated to the government
the relevant general measures it should undertake to protect lawyers.
26 In Ukraine, there are concerns regarding intimidation, harassment
and physical attacks on lawyers, as well as the failure to investigate
attacks.
Note And such matters
are even increasing; they have become widespread and systematic.
Note They
include killings of lawyers, which are sometimes inadequately investigated; abuse
of criminal proceedings to punish lawyers or remove them from certain
cases; unlawful monitoring of clients’ consultations with their
lawyers; and interrogation of lawyers as witnesses in their clients’
criminal cases.
27 In February 2016, Poland’s parliament amended the Police Act
to grant public authorities the right to access Internet data, including
the contents of communications. Under that Act, courts may now authorise secret
surveillance for up to three months, which may be extended for a
maximum of 18 months, on the basis of a broad list of suspected
crimes and without the requirement to consider whether there is
a need for the surveillance. These amendments also grant the police
direct access to meta data without a court order. Confidentiality
of information covered by advocates’ privilege is also endangered.
For instance, the amendments do not prohibit observing lawyer–client
communications in criminal cases.
3 Principles
and standards applicable to lawyers and the legal profession
28 Assembly
Recommendation 2121 (2018) called for the drafting of a Convention on the profession
of lawyer that would be based on the existing standards set out
in Committee of Ministers’
Recommendation
No. R(2000)21. The latter recommendation sets out six “principles”,
each followed by detailed guidance on their implementation in practice.
The ‘principles’ are described as follows:
- General principles on the freedom of the exercise of the
profession of lawyer;
- Legal education, training and entry into the legal profession;
- Role and duty of lawyers;
- Access for all persons to lawyers;
- Associations;
- Disciplinary proceedings.
3.1 Principle
I: General principles on the freedom of exercise of the profession
of lawyer
29 The first ‘principle’ in Recommendation
No. R(2000)21 sets out a series of ‘general principles’, notably the
following.
3.1.1 Freedom
of exercise of the profession of lawyer
30 This can be seen as the fundamental
principle underlying the entire recommendation: “All necessary measures
should be taken to respect, protect and promote the freedom of exercise
of the profession of lawyer, without discrimination and without
improper interference from the authorities or the public.” States
should strive to create an efficient, balanced system of taxation,
pension provision and other social benefits for lawyers on the basis
of their belonging to the profession of lawyer.
3.1.2 Authorisation
to practice as a lawyer
31 Decisions on authorisation
to practice as a lawyer or accede to the profession should be taken
by an independent body and in any case, should be subject to review
by an independent and impartial judicial authority.
3.1.3 Freedom
of belief, expression, movement, association and assembly
32 These freedoms are important
for lawyers who, in particular, “should have the right to take part
in public discussions on matters concerning the law and the administration
of justice and suggest legislative reforms.”
3.1.4 Freedom
from sanctions or pressure
33 Lawyers should not be subjected
to sanctions or pressure, or threats thereof, when acting in accordance with
professional standards. To enable the legal profession effectively
to perform its proper role in the defence of the rights of individuals,
lawyers should be able to counsel and represent their clients in
accordance with the internal law of the State concerned, as well
as with established professional standards, without any restrictions, influence,
pressure, threats or undue interference from any quarter. Lawyers
shall not be identified with their clients.
34 This also means that a lawyer should not be interrogated as
a witness in a criminal case against his or her client at any stage
of the proceeding.
35 Where the security of lawyers is threatened as a result of
discharging their functions, they shall be adequately protected
by the authorities.
3.1.5 Lawyers’
access to their clients
36 Lawyers should have access
to their clients especially to persons deprived of their liberty.
Lawyers (a) should be able to perform all of their professional
functions without intimidation, hindrance, harassment or improper
interference; (b) should be able to travel and to consult with their
clients freely both within their own country and abroad. Access
of lawyers to detainees is particularly important as a safeguard
against torture and other unlawful mistreatment.
Note
3.1.6 Confidentiality
of lawyer-client relationships
37 The confidentiality of the
lawyer-client relationship must be respected.
Note In this regard, the
United Nations Basic Principles require State authorities to recognise
and respect that all contacts between lawyers and their clients
within their professional relationship are confidential (Principle
22). Regrettably, lawyers defending political prisoners or people
accused of terrorism are frequently subject to harassment and illegal searches,
and often have their documents, cell phones and other electronic
devices scrutinized.
Note
38 This right has been enshrined in the practice of the Court,
notably under Article 8 of the Convention (right to respect for
private and family life, home and correspondence). Exceptions allowing
for interference with the right must be narrowly defined in accordance
with the law and strictly necessary in a democratic society in the interests
of, for example, national security, the prevention of disorder or
crime or protection of the rights and freedoms of others.
39 In
Laurent v. FranceNote, for
example, the Court held that the actions by a police officer who
intercepted papers that a lawyer had handed over to his clients
under police escort, had not responded to a pressing social need
and had therefore not been necessary in a democratic society within
the meaning of Article 8. In
Pruteanu v.
RomaniaNote,
the case concerned the interception of the telephone conversations
of a lawyer and his inability to challenge the lawfulness of the
measure and to request that the recordings be destroyed. The Court
held that there had been a violation of Article 8 of the Convention,
finding that the interference complained of had been disproportionate
to the legitimate aim pursued – namely to establish truth in connection
with criminal proceedings.
40 The Court recalled in particular that the interception of
conversations between the lawyer and his or her client undoubtedly
breached professional secrecy, which is the basis of the relationship
of trust existing between a lawyer and his or her client. Respecting
the confidentiality of information received by the lawyer from his
client (professional secrecy) is of utmost importance. According
to the Convention, there shall be no interference by a public authority
with the exercise of the right protected by article 8 “except such
as is in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety or
the economic well-being of the country, for the prevention of disorder
or crime, for the protection of health or morals, or for the protection
of the rights and freedoms of others”.
41 It should be noted that the development of state-of-the-art
digital technologies and audiovisual control technologies poses
new challenges to the confidentiality of lawyer-client relations
and requires improvement of the relevant legal regulations.
42 Searches and seizures at a lawyer’s office indubitably interfere
with the professional privilege at the heart of the relationship
of confidence which exists between the lawyer and his/her client
and is the corollary of the lawyer’s client’s right not to incriminate
himself. That being so, if domestic law could provide for the possibility of
legitimate searches of lawyers’ premises, they should imperatively
go together with special guarantees to prevent any arbitrariness
or abuse of their professional privilege as well as right to respect
for their private and family life.
Note
43 The Court has consistently held that the Contracting States
may consider it necessary to resort to search and seizure to obtain
physical evidence of certain offences. However, the reasons offered
to justify such measures must be “relevant” and “sufficient” and
the proportionality principle must be respected. The relevant legislation
and practice must afford individuals adequate and effective safeguards
against abuse. The search warrants must specify what objects or
documents are expected to be found and how they would be relevant
to the investigation, they must also specify and substantiate the
reasons which led an investigator to the conclusion that the evidence
could be found in a lawyer’s office.
Note
44 Another important safeguard is the presence and effective
participation of an independent observer in the course of the search
of a lawyer’s office to ensure that material subject to legal professional
privilege is not removed, or false evidence planted. Such an observer
should have requisite legal qualifications in order to effectively
participate in the procedure.
Note Moreover, the observer
should also be bound by the lawyer-client privilege to guarantee
the protection of the privileged material and the rights of third
persons. Lastly, the observer should be vested with requisite powers
to be able to prevent, in the course of the procedure, any possible
violation.
Note The lawyer’s personal
presence during a search and seizure should also be guaranteed; and
the search should be supervised by an investigative judge.
Note
3.1.7 Access
to a court
45 Lawyers should not be refused
access to a court before which they are qualified to appear and
should have access to all relevant files when representing their
clients.
46 It is the duty of the competent authorities to ensure lawyers
access to appropriate information, files and documents in their
possession or control in sufficient time to enable lawyers to provide
effective legal assistance to their clients. Such access should
be provided at the earliest appropriate time. It also includes the possibility
of unhampered access to the buildings of public authorities and
institutions in connection with exercise by lawyers of their professional
activity upon presentation of a lawyer ID.
3.1.8 Equal
respect by the court
47 Parties to the same court proceedings
should be accorded equal respect by the court. This manifests the
principle of equality of arms, which is a key requirement of the
right to a fair trial (Article 6 of the Convention). It is particularly
important in criminal cases, which pit a citizen against the State,
with the former potentially at risk of a severe sanction, such as
imprisonment. The court must not favour prosecutors over defence
lawyers. Very frequently, lawyers need additional guarantees for
the implementation of the adversarial principle.
3.2 Principle
II: Legal education, training and entry into the legal profession
48 This emphasises the prohibition
on discrimination mentioned in Principle I. It states that legal
education, entry into and continued exercise of the legal profession
should not be denied in particular by reason of sex or sexual preference,
race, colour, religion, political or other opinion, ethnic or social
origin, membership of a national minority, property, birth or physical
disability. It may well be that in 2020, 20 years after Recommendation
No. R(2000)21 was drafted, the list of prohibited grounds for discrimination
needs to be expanded.
49 Entry to the profession should require a “high standard of
legal training and morality”, and provision should be made for continuing
education. Both basic and continuing education should address legal
skills and ethical and human rights issues, and train lawyers to
respect, protect and promote the rights and interests of their clients
and support the proper administration of justice.
3.3 Principle
III: Role and duty of lawyers
50 The role and duty of lawyers
should be established through professional standards and codes of
conduct which should be drawn up by Bar or other lawyers’ professional
associations. Such standards and codes should inter
alia ensure that lawyers act independently, diligently
and fairly and respect professional secrecy, the violation of which,
without the client’s consent, should be subject to appropriate sanctions.
When providing legal assistance in a court and other settings, lawyers
are bound by the requirements of the law and ethical norms, which
are laid down in the respective rules and regulations. Lawyers should
respect the judiciary and their conduct in court should comply with
applicable rules and standards.
3.4 Principle
IV: Access for all persons to lawyers
51 An extension of Article 6 of
the Convention, which protects the right to legal assistance in
criminal proceedings, this Principle calls for “all necessary measures”
to ensure the access of everyone, including those in an “economically
weak position”, to the services of independent lawyers. Lawyers’
duties and diligence towards their clients should not depend on
whether they are paid privately or from public funds.
3.5 Principle
V: Associations
52 Membership of professional
associations, intended to strengthen professional standards and
safeguard the independence and interests of lawyers, is encouraged.
Such associations should be self-governing and independent and their
roles should be respected. Amongst other things, professional associations
should be encouraged to “promote and support law reform and discussion
on existing and proposed legislation” and “co-operate with lawyers
of other countries in order to promote the role of lawyers, in particular
by considering the work of international organisations of lawyers
and international intergovernmental and non-governmental organisations.”
53 In many States, bar associations are professional lawyer communities
and, as civil society institutions, they are not part of the public
authorities or local self-governance bodies. At the same time, in
some states, bar associations are not represented on the qualification
commissions of the judicial community. This situation needs to be
rectified, especially since, conversely, members of the judicial
community take an active part in the work of the qualification commissions
of bar associations.
3.6 Principle
VI: Disciplinary proceedings
54 This Principle notes that “Where
lawyers do not act in accordance with their professional standards…, appropriate
measures should be taken, including disciplinary proceedings”, for
which Bar associations or other lawyers' professional associations
should be responsible. Such proceedings should respect procedural guarantees
set out in the Convention. Any sanctions should respect the principle
of proportionality.
3.7 Summary
of principles established under international instruments
55 At the hearing on 30 January
2020, Ms Ślązak helpfully summarised the essential principles of
the key international instruments, namely the 1990 UN Basic Principles
on the Role of Lawyers and the Committee of Ministers’ Recommendation
R(2000)21 on the freedom of exercise of the profession of lawyer
as follows: the authorities should not apply sanctions, pressure
or threats against lawyers for exercising their professional duties
correctly; the authorities should not improperly interfere in lawyers’
work; the authorities should respect lawyer-client confidentiality;
admission of candidates to the profession should be decided by an
independent body; there should be full respect for lawyers’ freedoms
of belief, association and expression, including to express their
views on matters relating to justice and legal reforms; lawyers
should have free access to their clients, especially when detained,
and free access to the courts and case-files; and everyone should
have access to a lawyer, including persons in difficult economic
conditions.
3.8 Specific
situations
56 Certain contexts may justify
greater restrictions of lawyers’ rights. The
Guidelines
of the Committee of Ministers on human rights and the fight against
terrorism (2002), for example, recognise that “the imperatives of the
fight against terrorism may justify certain restrictions to the
right of defence,” notably arrangements for access to and contacts
with counsel and arrangements for access to the case file (Guideline
IX.3.) They may also justify interception of communications between
lawyers and their clients (Guideline XI.2.) These restrictions are
potentially open to abuse, given the lack of a universally recognised
definition of terrorism. National authorities are obliged to take
all necessary action to prevent and protect against terrorism. It
is, however, unacceptable to unlawfully instrumentalise lawyers
and interfere with their professional activities to this end.
4 Defending
lawyers and the legal profession: the role of the Council of Europe
57 Although international legal
instruments clearly prohibit undue interference in the legal profession,
the specific activities that amount to prohibited “interference”
cannot be exhaustively identified. Depending on the situation, the
authorities may be justified in “interfering” with some rights of
lawyers. The question is whether or not that “interference” amounts
to a violation, which will often depend on whether or not it is
proportionate. It is necessary to create a reliable mechanism for
early warning and prevention of immediate threats to the security
and independence of professional lawyers.
58 The promotion of the full enjoyment of lawyers’ rights and
their protection as human rights defenders is also a priority for
the office of the Commissioner for Human Rights, through third party
interventions before the Court, consultations with human rights
defenders, co-operation with other international partners and in
the framework of dialogue with member States.
Note
59 Professional assistance to lawyers and professional associations
has been provided by the Council of Europe. The Committee of Ministers
agreed with the Assembly that the implementation of
Recommendation No.
R(2000)21 could be improved through training programmes in the
framework of the organisation’s cooperation activities and has encouraged
all departments to step up their efforts in this area. Co-operation activities
concerning lawyers, their professional associations and their training
aim to bring national laws and regulations into line with European
standards. More generally, the European Programme for Human Rights Education
for Legal Professionals (HELP) supports member States in implementing
the Convention at the national level by enhancing the capacity of
judges, lawyers and prosecutors to apply the Convention in their daily
work.
Note At the video conference held on
8 July 2020 under the auspices of HELP, the following statistics on
the growth of the number of users of the electronic platform of
this program were announced (as of June 2020): France – 10 426,
Turkey – 5 322, Spain – 5 228, Ukraine – 4 069, Italy – 3 942, Russia
– 3 716, United Kingdom – 3 060, Greece – 2 875.
5 A
possible Council of Europe convention on the profession of lawyer
60 As noted above, the Committee
of Ministers has now replied to Assembly
Recommendation 2121 (2018) and has instructed the European Committee on Legal Co-operation
(CDCJ) to prepare a feasibility study covering the following points:
a identifying the possible added
value of drafting a convention, taking account of the protection
provided by other Council of Europe instruments, in particular the
European Convention on Human Rights and the case-law of the European
Court of Human Rights;
b identifying and assessing the possible alternatives to
drafting a convention, including, for instance a new recommendation
or guidelines;
c defining, if appropriate and depending on the conclusions
under items a and b, a tentative outline of the personal and material
scope of a convention;
d drawing up, if appropriate and depending on the conclusions
under items a and b, a tentative outline of draft terms of reference
for a committee of experts responsible for drafting the convention,
and advising on appropriate working methods.
6 Conclusions
62 Continuing reports of lawyers
being threatened, disbarred, restricted in their rights and worse
are a matter of serious concern, both in themselves and from the
wider perspective of the protection of human rights and the rule
of law. While the Council of Europe is studying the feasibility
of a European convention on the profession of lawyer, it is essential
for the Assembly to remain informed of and respond to such threats.
The purpose of this report, therefore, was to examine recent developments
across the member States, with a view to making helpful recommendations
to member States, support the work of other Council of Europe bodies
and mechanisms and continue to encourage the Committee of Ministers’
to proceed towards adoption of a new convention.
63 Moreover, it is important that the Council of Europe bodies
make it clear that any unlawful interference with a lawyer’s work,
and especially threats against and prosecutions of lawyers for their
professional activities, when a lawyer is identified with his/her
client and as such is considered to assist a crime, can be considered as
grave violations of the right to a fair trial and should be prevented,
with appropriate sanctions where necessary.
