Draft convention for the protection of the profession of lawyer
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly debate on 30 January 2025
(7th sitting) (see Doc.
16094 and Doc.
16102, report of the Committee on Legal Affairs and Human
Rights, rapporteur: Mr Vladimir Vardanyan). Text
adopted by the Assembly on 30 January 2025 (7th sitting).
1. The Parliamentary
Assembly warmly welcomes the finalisation of the draft Council of
Europe convention for the protection of the profession of lawyer
(hereinafter the “draft convention”) by the Committee of Experts on
the Protection of Lawyers (CJ-AV) and the European Committee on
Legal Co-operation (CDCJ).
2. It shares the view of the European Court of Human Rights that
the specific situation of lawyers gives them a crucial position
in the administration of justice as intermediaries between individuals,
the public and the courts. They therefore play a key role in ensuring
that the courts, whose mission is fundamental in a democratic State
based on the rule of law, enjoy public confidence. However, for
members of the public to have confidence in the administration of
justice, they must have confidence in the ability of the legal profession
to provide effective representation and necessary legal support
and assistance. Lawyers are protagonists in the justice system,
directly involved in its functioning and the defence of a party.
3. The Assembly has consistently considered lawyers as human
rights defenders and observed, with increasing concern, the rising
number of cases in which lawyers became targets of attacks solely
because they exercised their professional duties.
4. The Assembly refers to its extensive work on the protection
of lawyers, who play a central role in protecting human rights,
particularly the right to a fair trial, and in implementing the
rule of law, including
Resolutions
1660 (2009) “Situation of human rights defenders in Council of Europe
member states”,
1685 (2009) “Allegations of politically motivated abuses of the
criminal justice system in Council of Europe member states”,
1891 (2012) “The situation of human rights defenders in Council
of Europe member States”,
2095 (2016) “Strengthening the protection and role of human rights
defenders in Council of Europe member States”,
2348 (2020) “The principles and guarantees applicable to advocates”,
2513 (2023) “Pegasus and similar spyware and secret State surveillance”,
and their related recommendations, in particular
Recommendation 2121 (2018) “The case for drafting a European convention on the
profession of lawyer”.
5. The Assembly considered, in particular, that the harassment,
threats and attacks against lawyers demonstrated the need to reinforce
the legal status of Recommendation Rec(2000)21 of the Committee
of Ministers to member States on the freedom of exercise of the
profession of lawyer, by translating its provisions into a legally
binding instrument with an effective control mechanism. The Assembly
thus called on the Committee of Ministers to draft and adopt a convention
on the profession of lawyer based on the standards set out in Recommendation
Rec(2000)21, taking into account the existing soft law instruments
and reinforcing guarantees in relation to fundamental issues such
as access to a lawyer and lawyers’ access to their clients, legal
professional privilege and the confidentiality of lawyer–client
communications.
6. The Assembly notes with satisfaction that the draft convention
is designed to introduce structured legal protection of the profession
of lawyer and the right to practise the profession without fear
of discrimination, improper hindrance or interference or being subjected
to attacks, threats, harassment and intimidation. It establishes
the professional rights of lawyers, specifies the relevant aspects
of their freedom of expression and certain protective measures.
Despite the existence of other international legal instruments pursuing
similar aims, including the European Convention on Human Rights
(ETS No. 5), the United Nations Basic Principles on the Role of
Lawyers, Recommendation Rec(2000)21 of the Committee of Ministers
to member States on the freedom of exercise of the profession of
lawyer and the United Nations Human Rights Council Resolution 44/9
on the independence and impartiality of the judiciary, jurors and
assessors, and the independence of lawyers, the draft convention
will become the first-ever international treaty on this matter.
7. Once adopted and after its entry into force, the convention
will also be open for accession by any non-member State of the Council
of Europe at the invitation of the Committee of Ministers. The Assembly
considers that the convention’s global reach will further reinforce
the Council of Europe’s status as a leading international organisation
in the protection of human rights, democracy and the rule of law.
8. The Assembly is mindful that the draft convention was prepared
taking into consideration the great variety of legal systems and
ways the legal profession is organised in member States of the Council
of Europe and beyond. It appreciates the inclusive drafting process,
which involved government representatives, experts and legal practitioners,
with contributions from non-governmental organisations (NGOs), including
several professional associations of lawyers.
9. The Assembly welcomes that its proposals contained in
Recommendation 2121 (2018) are largely reflected throughout the text of the draft
convention. It considers it particularly significant that the draft convention’s
key provisions (Articles 6, 7 and 9.3) will apply not only to lawyers
authorised to practise the profession under national law, but also
to individuals denied or revoked the qualification of lawyer or
their licences, as well as those recognised by international courts
and bodies as competent to act in proceedings before them (Article 2.3).
This will cover persons who may not be licensed lawyers but who
represent applicants before the European Court of Human Rights,
United Nations human rights bodies and/or other relevant fora, such
as representatives of NGOs and academics. This extended scope will
enhance the effectiveness of the guarantees provided by the draft
convention, particularly in cases where the national authorities
could seek to bypass them by misusing lawful procedures. The draft
convention not only meets the standards established in the jurisprudence
of the European Court of Human Rights and in other relevant international
documents, but it also develops them by establishing new, higher
standards, thereby providing real added value for the protection
of the rights of lawyers.
10. The Assembly also welcomes the stipulation in the draft convention
(Article 4) of legal standards for the functioning of professional
associations of lawyers as independent, self-governing bodies.
11. The Assembly is particularly satisfied that the draft convention
establishes a robust mechanism for monitoring its implementation
(Article 10) and equips it with adequate tools to ensure the effectiveness
of the process. The Assembly is pleased to note that it will be
informed of the implementation of the convention (Article 15) and
findings of inquiries undertaken under the urgent procedure (Article 13.3).
This will provide valuable input for the Assembly’s continued work
on upholding human rights and the rule of law.
12. The Assembly regrets that the draft convention contains no
specific provisions on the use of secret surveillance, including
spyware such as Pegasus, against lawyers. While Article 6.3.
b of the draft convention obliges
parties to ensure that lawyers can communicate confidentially with
their clients or prospective clients, its general terms may not
be sufficient to exclude the risk posed by the use of modern secret
surveillance tools to the right to practise the profession of lawyer
without interference. Referring to its
Recommendation 2258 (2023) “Pegasus and similar spyware and secret State surveillance”,
the Assembly proposes that specific provisions regarding this matter
be included in a future Council of Europe convention on the acquisition,
use, sale and export of spyware.
13. The Assembly invites the future Group of Experts on the Protection
of the Profession of Lawyer (GRAVO) to engage in a regular, mutual
exchange of information on all issues pertaining to the situation
of lawyers and their role in upholding human rights and the rule
of law with its competent committees.
14. The Assembly notes that although the CJ-AV expressly considered
that none of the provisions of the draft convention should be subject
to reservation, no relevant prohibition related thereto was introduced.
In consequence, pursuant to customary international law (as reflected
in Article 19 of the Vienna Convention on the Law of Treaties),
the draft convention – as presently drafted – could be subject to
reservations upon signature, ratification, acceptance, approval
or accession, contrary to the clear intention of the CJ-AV expressed
in its report of the 8th meeting (13-15 May 2024) (document CJ-AV(2024)08).
15. Agreeing with the CJ-AV that none of the provisions of the
draft convention should be subject to reservation and noting that
only the full implementation of the draft convention will allow
it to fulfil its purpose, the Assembly proposes the following amendment
to the draft convention: in Chapter V, add the following article:
“No reservation may be made in respect of the provisions of this
Convention.”
16. Considering that the draft convention mostly reflects the
Assembly’s proposals contained in its past recommendations, the
Assembly is of the view that the draft Council of Europe convention
for the protection of the profession of lawyer can be adopted by
the Committee of Ministers and opened for signature and ratification
as soon as possible.
