Master Thesis
The Proposed European Convention on the Profession of Lawyer: Do lawyers need a European Convention?
Student: Tunaya Albertzoon
Student number: 0358940
E-mail: tunaya_albertzoon@hotmail.com
Master track: Public International Law (International and European Law)
Supervisor: Dr. M. den Heijer
Date of final submission: 6 January 2020
ABSTRACT
The European Court of Human Rights has recognized that lawyers are protagonists in the administration of justice, upholding the rule of law by means of the effective protection of individual rights. In order to provide representation effectively, it is of great importance that lawyers are free from interference in the exercise of their profession of lawyer. As we learn from current practice unfortunately, lawyers in an increasing amount of countries are victims of
physical attacks, harassment and even killings relating to their professional activities, which is the day-to-day reality they face. International law consists of a variety of legally binding instruments, based on which fundamental rights of individuals are guaranteed. The protection of the freedom of exercise of the profession of lawyer is not included in this legal framework of international law as these provisions are of a more general character. Considering existing soft law instruments on the topic which are less effective than the current binding instruments, the Parliamentary Assembly has filed a motion with the Committee of the Council of Europe for the recommendation on the drafting of a European Convention on the Profession of Lawyer, followed by a recommendation in which it explains why and how a new European Convention on the Profession of Lawyer should be established. This research has demonstrated that a new binding convention would indeed be a necessary addition to the existing binding and non-binding instruments, that this convention would constitute an appropriate legal framework in order to address the urgent situations of lawyers and how this new convention should be implemented. The purpose of this thesis was to create
awareness with regard to the vulnerable position of a great number of lawyers in and outside of Europe, as they are forced to exercise their profession under often dangerous circumstances, while protecting the fundamental rights of others, but without being provided appropriate protection themselves. This research has analysed mainly European jurisprudence, existing treaty-based and soft law standards and their relation to the protection of the profession of lawyer from a critical normative, comparative, descriptive and predictive perspective. Normative as I have critically assessed the effectiveness of the existing legal framework on the topic; comparative on the basis of the relation between the binding legal instruments and the non-binding legal instruments, and finally the descriptive perspective in combination with the predictive perspective as I have described my view on the possible establishment of the development of an additional legal framework to the existing legal instruments. By means of these methods I have determined that the proposed European Convention on the Profession of Lawyer is a necessary addition to the European Convention on Human Rights and that lawyers do need a European Convention.
TABLE OF CONTENTS
ABSTRACT...2
1 INTRODUCTION...4
1.1 The rule of law...4
1.2 Lawyers at risk...4
1.3 The protection of human rights...5
1.4 The independence of lawyers...6
1.5 The need for a binding instrument...7
1.6 Research methods...7
2 CONCERNS WITH REGARD TO THE POSITION OF LAWYERS...8
2.1 What is the current situation of lawyers in the Member States of the United Nations? 8 2.2 Should there be a distinction between different kinds of lawyers?...8
3 THE LEGAL FRAMEWORK: BINDING INSTRUMENTS...10
3.1 What are the most important binding instruments protecting the right to a fair trial?. 10 3.2 Does case law provide protection of the right to a fair trial and access to court?...10
3.3 How do the binding instruments relate to the exercise of the profession of lawyer?...12
3.4 How is the role of lawyers in the existing legal framework judged in case law?...12
3.5 Is it appropriate to make a distinction between different proceedings in the protection of the right to a fair trial and access to court?...13
3.6 How important is the right to privacy between the lawyer and the client?...14
3.7 Are there implied rights which can be derived from the binding instruments?...14
3.8 Under which circumstance can the right to legal assistance be restricted?...15
4 THE LEGAL FRAMEWORK: SOFT LAW INSTRUMENTS...17
4.1 Which role does soft law play in the international legal system?...17
4.2 What does soft law say about the profession of lawyer?...17
4.3 Can soft law transform into hard law?...19
4.4 Could the new Convention be drafted as an additional Protocol to the European Convention on Human Rights?...20
5 DRAFTING A NEW CONVENTION ON THE PROFESSION OF LAWYER...21
5.1 What should be the scope of a new international instrument?...21
5.2 Should the new convention build further on the existing binding instruments?...21
5.3 Which requirements for the profession of lawyer should the new Convention include?22 5.4 How should an effective control mechanism be established?...23
5.5 The text of the European Convention on the Profession of Lawyer...24
5.6 Is the establishment of an early-warning mechanism desirable?...24
6 CONCLUSION...26
7 BIBLIOGRAPHY...28
1 INTRODUCTION
2 The rule of law
The concept of the rule of law is a central value which is fundamental to international law.1 In
principle the development of the rule of law commenced on a national level, but with regard to the compelling nature thereof it was also influenced by international law which strengthened the legal force of the rule of law.2 An essential object of the rule of law is to control the power of
governments by means of the law and thereby to protect individuals against arbitrary use of power of these governments. In order to protect and maintain the rule of law, the work of lawyers plays an essential role as they form a bridge between civil society and the judicial system, which assigns them a prominent role in the system of justice.3 Based on their profession they are authorized to
protect the fundamental rights and freedoms of their clients, which are enshrined in several provisions of human rights law which will be assessed below.
3 Lawyers at risk
Alec Muchadehama is a lawyer and human rights defender in Harare, the capital city of Zimbabwe. He has often successfully defended a great number of members of the opposition, human rights activists and he also investigates disappearances of activists. The work of Alec has come to the attention of the government of Zimbabwe, causing him to be threatened and being followed by government officials; he has been arrested and prosecuted several times and there has even been an attempt to kidnap him.4 In Thailand, Sirikan Charoensiri works as a human rights
lawyer who provides free legal assistance to activists and vulnerable people whose rights have been affected by the military rule. Sirikan has been subject to intimidation by the Thai government and faces ongoing charges against her, relating to her work as human rights lawyer.5 Tatiana
Akimtseva and Vitaliy Moiseyev, both lawyers in the Russian Federation, have been killed under suspicious circumstances, which killings were not investigated properly by the Russian
1 As in many other intruments, it is also laid down in the preamble of the Charter of fundamental rights of the European Union that one should be conscious of its spiritual and moral heritage and that the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity and based on the principles of democracy and the rule of law.
2 Geranne Lautenbach, The Concept of the Rule of Law and the European Court of Human Rights (OUP 2013), p. 2.
3 Recommendation 2121, The case for drafting a European convention on the profession of lawyer (Parliamentary Assembly 2018).
4 https://lawyersforlawyers.org/en/lawyers/alec-muchadehama/ accessed 6 November 2019.
5 https://lawyersforlawyers.org/en/lawyers/one-case-dropped-against-lawyer-sirikan-charoensiri/ accessed 6
November 2019.
authorities.6 Selçuk Kozagaçli is a lawyer and human rights defender from Turkey, who has
defended many persons who have been a victim of human rights violations. He was arrested in November 2017, based on charges with regard to ‘membership of terrorist organisation’. In March 2019 he was sentenced to 11 years and 3 months of imprisonment. Selçuk, as well as Alec and Sirikan, has received international publicity for his work and was rewarded the Lawyers for Lawyers Award for 2019. He received the award for the dedication by which he exercises his work as a lawyer while facing charges which have now led to his prosecution.7 The need for
change also follows from current shocking events which occurred in the Netherlands, a country which could be regarded as one of the countries where lawyers could exercise their profession in a free and relatively safe environment. Two events, occurring even closer to home, illustrate the growing threat of lawyers when practising law. Mark Wiersum, a lawyer in the Netherlands representing a witness in an ongoing criminal case, was shot to dead on 18 September 2019.8 On 6
November 2019 another lawyer, Philippe Schol was shot and hurt in the German city of Gronau. Philippe lived in the Netherlands but was practising as civil lawyer in Germany.9 Such crimes as
in these events don not often occur in the Netherlands which show a new threat to the rule of law and relating hereto, to the profession of lawyer. The respect related to the prominent and special role fulfilled by lawyers seems to be decreasing which should raise great concern.
4 The protection of human rights
These specific above-mentioned situations of the first five lawyers clearly illustrate abuse of power of governments. Considering the central position of the rule of law as determined in 1.1, the protection against this abuse can be effectively accomplished through human rights law, which is confirmed at the adoption of the Universal Declaration on Human Rights (the ‘UDHR’) in 1948 and with the conclusion of the European Convention on Human Rights and Fundamental
Freedoms (currently named European Convention on Human Rights, ‘the ‘ECHR’ or the ‘Convention’) in 1950, where the importance of the rule of law was stressed in the Preamble. 10 6 Doc. 14453, The case for drafting a European convention on the profession of lawyer (Rapporteur S. Battheu, Committee on Legal Affairs and Human Rights, 2018), para 55.
7 Selçuk Kozağaçlı to receive L4L Award 2019, <https://lawyersforlawyers.org/selcuk-kozagacli-to-receive-l4l-award-2019> accessed 8 November 2019.
8 Kaya Bouma en Tjerk Gualthérie van Weezel, Geschokte reacties na moord op Derk Wiersum: ‘Aanval op
advocaat is aanval op rechtsstaat’, 18 September 2019, <https://www.volkskrant.nl/nieuws-
achtergrond/geschokte-reacties-na-moord-op-derk-wiersum-aanslag-op-advocaat-is-aanval-op-rechtsstaat> accessed 8 November 2019.
9 Andreas Kouwenhoven en Christiaan Paauwe, Nederlandse advocaat neergeschoten, dreiging al eerder
gemeld bij NCTV, 6 November 2019, <https://www.nrc.nl/nieuws/2019/11/06/nederlandse-advocaat-neergeschoten-in-duitsland-a3979327> accessed 8 November 2019.
10 In the Preamble of the UDHR it was confirmed that ‘if man is not to be compelled to have recourse, as a last
resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law’; in
Article 6 of the Convention is regarded as a central provision herein, guaranteeing the ‘right to a fair trial’ which entails the right to access to the judicial system and therefore to court.11 One of the
starting points of this access to court is laid down in article 6(3), in which the right to be defended by a lawyer in criminal proceedings is guaranteed.
5 The independence of lawyers
A lawyer should work independently and free from interferences and restrictions, in order to be able to protect his or her clients effectively and to practice law properly. Without this
independence and freedom, the right to be defended as laid down in article 6(3) is of little significance. However, it follows from the jurisprudence from the European Court on Human Rights (‘the ‘ECtHR’ or the ‘Court’) and the above-mentioned examples with regard to the lawyers in Zimbabwe, Thailand and the Russian Federation, which are a few out of many similar situations, that the rights related to the exercise of the profession of lawyer in the Member States of the Council of Europe, are restricted and violated on a regular basis.12 This alarming practice is
also occurring outside of Europe, which is explained in a resolution which was adopted by the Human Rights Council of the United Nations.13 The resolution includes not only attacks on
lawyers, but also on judges and prosecutors. The Human Rights Council has expressed its deep concern with regard to the shocking amount of events of violence against these different actors in the system of justice and he confirms situations of arbitrary and unlawful interference with or restrictions to the free practice of their profession. He states that the persons responsible for ‘all forms of violence, threat, retaliation, intimidation and harassment, whether from State authorities or non-Sate actors, resulting from the discharging of their functions’ should be brought to justice. Considering their central role in the judicial system, it is therefore necessary that lawyers enjoy a certain level of protection, based on a legal framework they can resort to in cases of violations of rights specifically relating to the performance of their profession.14 This protection should be
guaranteed on an international level, as it shows from the examples above and as I will assess further, that the amount of national governments who violate the fundamental rights of lawyers is significant.
the Preamble of the ECHR the rule of law is regarded as part of the common European heritage and therefore an important reason for the Member States to collectively enforce several rights which are mentioned in the UDHR.
11 Sunday Times v United Kingdom App no 6538/47 (ECtHR, 26 April 1979), para 55.
12 Aliyev v Azerbaijan App nos 68762/14 and 71200/14 (EctHR, 20 September 2018), para 186.
13 A/HRC/35/L.20, 19 June 2017, para 10.
14 Mikolaj Pietrzak, a lawyer and Dean of the District Bar Council in Warsaw, attended an event which was
hosted by the Foundation called Lawyers for Lawyers in May 2019 and confirmed that also in Poland, lawyers and human rights defenders, but also journalists face threats of government officials regularly.
6 The need for a binding instrument
As I will illustrate in this research, there are several legally binding instruments of international human rights law for the protection of the right to a fair trial for which the above-mentioned right to be defended by a lawyer forms a basis, but such instruments do not exist when it concerns the freedom of exercise of the profession of lawyer. The latter is mainly laid down in ‘soft law’ instruments which therefore have no binding legal force. The system of international and
European law does not entail a specific convention on the protection of the profession of lawyer. Based on the above-mentioned threats against lawyers, the Parliamentary Assembly of the Council of Europe has expressed deep concerns towards the Committee of Ministers of the Council of Europe and called for the development of a Convention on the Profession of Lawyers, based on the minimum standards which are laid down in current existing soft law instruments and which will be legally binding on the member States of the Council of Europe and even on non-member States. The primary goal of such a convention is to protect lawyers who are a victim of the above-illustrated abuse of power of governments in the form of threats and unlawful prosecution, relating to their professional activities.
7 Research methods
This research will descriptively examine the current situation of lawyers, what the existing legal framework with regard to the exercise of the profession of lawyer entails and it will normatively assess the effectiveness hereof, assessing the binding- and non-binding instruments. I will assess what the legal gap is with regard to this existing framework and the required protection of lawyers and which protection the proposed Convention on the Profession of Lawyers offers to lawyers, by means of a comparative method. Furthermore, this research will examine in which form this Convention should be established and if this Convention is a necessary and more effective
additional instrument to the existing international instruments, by means of the predictive method. Furthermore, the appropriateness to establish a legal framework for the protection of an obvious important group of individuals that has an essential role to fulfil in our community, and the possible scope of the Convention will be assessed. Considering the important role of lawyers which is not restricted to certain areas of the world, this research will focus on international law which includes the Member States of the United Nations.
8 CONCERNS WITH REGARD TO THE POSITION OF LAWYERS
9 What is the current situation of lawyers in the Member States of the United Nations?
In order to act on the deep concerns with regard to the position of lawyers, the Parliamentary Assembly of the Council of Europe (the 'Parliamentary Assembly') submitted a motion for a recommendation on 13 October 2016 at the Committee of Ministers of the Council of Europe on the drafting of a European Convention on the Profession of Lawyer (the ‘Motion’)15. The
Committee on Legal Affairs and Human Rights appointed Ms Sabien Lahaye-Battheu as
Rapporteur and assigned her with the task to issue a report on the Motion in order to illustrate the situation of lawyers globally. In her report, Ms Lahaye-Battheu elaborates in detail on the
proposed draft Convention on the Profession of Lawyer which report serves as an additional document to the Motion. She enjoys the support from other organisations as the CCBE, an international organisation on which I will elaborate below, who has also shared its opinion on the Motion.16 The report of Ms Lahaye-Battheu shows examples of situations in which lawyers in
several countries are forced to exercise their profession. The government of countries as
Azerbaijan, Turkey and the Russian Federation have created an unsafe environment for lawyers to work in. They have been a victim of intimidation, threats, harassments and exclusion from
national bar associations. In most countries it is mandatory to be a member of a bar association in order to exercise the profession as lawyer, which means that when he or she is excluded from the bar association, this takes away the ability to work as a lawyer.
10 Should there be a distinction between different kinds of lawyers?
The nature of the work of the above-mentioned lawyers is different, but many cases dealt by these lawyers also includes the protection of individuals of whom fundamental rights were violated.17 In
Turkey, hundreds of lawyers are detained or face prosecution based on charges of terrorism. After the coup in 2016 an increasing amount of lawyers who were being accused of being opponents of the current government, have not been able to exercise their profession freely and independently.18
Regarding the different nature of the work on the lawyers of which the situation is illustrated in 15 Council of Europe, Parliamentary Assembly Motion for recommendation, Doc. 14181 (2016) on The Case for
drafting a European Convention on the profession of lawyer, 13 October 2016.
16 CCBE contribution on the proposed European Convention on the Profession of Lawyer, 15 September 2017, <
https://www.ccbe.eu/fileadmin/speciality_distribution/public/documents/EUROPEAN_CONVENTION/CONV_Posi tion_papers/EN_CONV_20170915_CCBE-contribution-european-convention-profession-lawyer.pdf.>Assessed 8 November 2019.
17 Council of Europe, Committee on Legal Affairs and Human Rights, Report, Doc. 14453 (2017) on The Case
for drafting a European Convention on the profession of lawyer, 15 December 2017.
18 Report of the UN Office of the United Nations High Commissioner for Human Rights (OHCHR): Report on
the Impact of the state of emergency on human rights in Turkey, including an update on the South-East (January-December 2017) March 2018.
the different countries, so it would serve the purpose of the new convention to include not only human rights lawyers whose work is mainly based on the protection of victims of human rights violations, but to include all lawyers, regardless of in which area of law they operate. The events which recently occurred in the Netherlands were concerning lawyers who were both lawyers dealing with criminal and civil cases, but who have been attacked because of their professional activities. A new convention excluding lawyers like Mark Wiersum and Philippe Schol because the nature of their work does not fall within the scope of the convention would in the first place be discriminatory and contrary to the principle of equality19, and would also be degrading the
importance of their work.
19 GA Res 67/1, UNGA, 67th Sess, Supp No 83 (30 November 2012) 14.
11 THE LEGAL FRAMEWORK: BINDING INSTRUMENTS
12 What are the most important binding instruments protecting the right to a fair trial?
As aforementioned, the right to a fair trial is recognized as an essential element of the rule of law. This is confirmed by the Council of Europe and by the Court, the latter stating in its jurisprudence that ‘article 6 of the Convention reflects the fundamental principle of the rule of law’.20 The
importance of the right which this provision entails also follows from the statistics with regard to the significant amount of cases brought before the Court with regard to a violation of article 6 in the last decade, which illustrates that this provision is one of the most invoked provisions.21 The
right to a fair trial is laid down in article 6 and consists of three parts, of which the third part consists of five elements, containing the right to ‘defend himself in person or through legal assistance of his or her own choice or, if he or she is not able to pay for legal assistance, to receive this on a pro bono basis when the interests of justice so require’. Another important human rights treaty in which the right to a fair trial is laid down, is the International Covenant on International and Political Rights (the ‘ICCPR’) which was adopted in 1966. Article 14 ICCPR guarantees the right to a fair trial, and similar to article 6 of the ECHR, the right to defend himself in person or through legal assistance is guaranteed in article 14(3) as well. Similar to what the ECtHR has concluded in its judgments, the Human Rights Committee (the ‘HRC’) has also emphasized the importance of a fair trial and further hereto that the right to legal representation is an essential element hereof.22 Article 14(1) ICCPR guarantees the right to be equal before the court, which is
quite similar to the right to court as it is enshrined in article 10 of the UDHR, where it is stated as ‘the right of everyone to be entitled in full equality to a fair and public hearing’. The importance of the connection between the protection of human rights and the underlying rule of law,
supporting the right to the access to court, was confirmed by the HRC in the General Comment 32, defining its views with regard to the rights laid down in article 14 ICCPR.23
13 Does case law provide protection of the right to a fair trial and access to court?
In the jurisprudence of the ECtHR the right to (free) legal assistance was established in the case of
Airey v Ireland in 1979. In this case the applicant, Mrs Airey, was not able to divorce her violent
husband, because she did not have the financial means to seek legal assistance. The ECtHR held
20 Sunday Times v United Kingdom, App no 6538/47 (ECtHR, 26 April 1979), para 55.
21 Robin C.A. White & Clare Ovey, The European Convention on Human Rights (OUP 2010), p. 242.
22 Larrañaga v the Philippines, HRC Communication 1421/2005, UNDOC CCPR/C/87/D/1421/2005(2006) para
7.6.
23 UN Human Rights Committee, CCPR General Comment 32 (2007), para 2.
that this was a violation of her right to access to court.24 In the case of Poitrimol v France, the
Court stressed that it is necessary that applicants in a case should have the possibility to be defended by a lawyer or to defend themselves and the Court also stressed in connection herewith, the importance of the rule of law in a democratic society.25 Furthermore, the Court emphasized in
its jurisprudence that the right to legal assistance contains more than just a ‘nomination’ of the lawyer to act on behalf of the defendant and that the right enshrined in article 6(3) has to be effective and practical for the lawyer in order to provide an adequate defence.26
The rule of law is considered the basis for another element of article 6 of the Convention, known as the right to access to court. Even though this right is not explicitly mentioned in the
Convention, it was confirmed to be a part of the provision in the Golder case of the Court.27 In this
case the defendant was accused of starting a prison riot, and he wanted to start a procedure but was not allowed legal assistance which made it impossible for him to start the procedure. The
Commission on Human Rights had also issued a decision on this case, stating that the right to access to court should be a central element of article 6 because the safeguards incorporated in this provision would be of less importance if the access to court was not guaranteed.28 The incapability
to start a procedure in the Golder case because of the absence of legal assistance was thus a violation of the right of the defendant. Further to this decision, the Court came to the same conclusion and additionally concluded that the right to access to court is included in article 6 because an implication of the rule of law is that every individual enjoys the right to access to court. Furthermore, the Court emphasized that the right to access to court is a universally recognized fundamental principle of law and in connection with the decision of the
above-mentioned Commission, it states that the principles and safeguards which follow from article 6 are of no value without the access to court.29 These principles and safeguards concern the protection of
human rights, of which the work of the Court is a necessary element. The Golder case is a landmark decision of the Court, as in this case the rule of law was an important means to incorporate the right of access to court in article 6 of the Convention.30
24 Airey v Ireland, App no 6289/73 (ECtHR, 9 October 1979), para 28.
25 Poitrimol v France, App no 14032/88 (ECtHR, 23 November 1993), para 38.
26 Daud v Portugal (ECtHR 1998), para 38. See also Steel and Morris v the United Kingdom [2005] ECHR 103, paras 62, 67., where the Court also confirms the importance of rights to be enjoyed effectively and practically.
27 Golder v United Kingdom, App no 4451/70 (ECtHR, 21 February 1975), para 28. According to the Court, the
right to access to Court can be regarded as an element of article 6(1).
28 Golder v United Kingdom, App no 4451/70 (ECtHR, 21 February 1975), para 53. 29 Golder v United Kingdom, App no 4451/70 (ECtHR, 21 February 1975), para 35.
30 Geranne Lautenbach, The Concept of the Rule of Law and the European Court of Human Rights (OUP 2013),
p. 129.
14 How do the binding instruments relate to the exercise of the profession of lawyer?
As mentioned in 1.1, lawyers play a protagonist role in our community. By means of their profession they are able to act as intermediary between civil society and the judicial system, upholding the rule of law. In the legal framework as assessed above, their role is confirmed to be of the highest importance as it is stated by authorized bodies as the ECtHR and the HRC.
However, these confirmations are mostly based on the fact that lawyers are a necessary ‘means’ in the form of legal assistance in order to uphold the rule of law and to make sure that in cases of violations of specific rights which are laid down in the treaties concerned, civil society can resort to law in order to find reparation by the authorized court. In order to work independently and free from interferences and restrictions, there should be a specific safeguard for lawyers ensuring them to work under these circumstances, which does not seem to exist at an international level. In its jurisprudence the Court has even included the right to personal security, confirming that it would emphasise the central position of the legal profession in the judicial system and the maintenance of the rule of law. The freedom of lawyers to practise their profession free from interference is an important element of a democratic society and a required to be a prior condition for the effective enforcement of the provisions of the Convention, especially when it comes to the right to a fair trial and the right to personal security. Persecution or harassment of members of the legal
profession thus strikes at the very heart of the Convention system. For this reason, when lawyers face such persecution and harassment, these events will be subject to strict scrutiny by the Court.31 15 How is the role of lawyers in the existing legal framework judged in case law?
It should be noted that because of the fact that the lawyers are the connection between their clients and court as we have seen above, it is necessary that their clients are confident in the ability of the lawyer to provide them with effective legal protection. When the lawyer has the confidence of the community with regard to his ability to exercise his profession as lawyer properly and his ability to provide effective legal assistance, the court receives the same confidence with regard to the provision of sufficient and effective legal protection.32 A clear example of a situation where this
confidence is threatened is illustrated in the judgment of the ECtHR in the case of S. v
Switzerland. In this case S. was part of a group of detainees, accused of attacks and causing
damage to public and private buildings after a protest against decisions of the government. He was provided legal representation by a lawyer, but their communication was constantly subject to supervision of police officials and letters between S and his lawyer were intercepted. The Court
31 Elci and others v Turkey App nos 23145/93 and 25091/94 (EctHR, 13 November 2003), para 669. 32 Morice v France App no 29369/10 (EctHR, 23 April 2015), para 128.
stated that, with reference to other provisions of domestic law and international law, the ECHR ‘does not expressly guarantee the right of a person charged with a criminal offence to
communicate with defence counsel without hindrance’, but that this right is an essential element of the right to a fair trial in a democratic society, and that without this right the assisting nature of the profession of lawyer would be undermined, which is contrary to the purpose of the Convention to guarantee rights which can be enjoyed effectively and practically.33
16 Is it appropriate to make a distinction between different proceedings in the protection of the right to a fair trial and access to court?
There has been discussion with regard to the wording ‘criminal proceedings’ as the question arose whether it is acceptable if a distinction is drawn when it comes to the right to legal assistance, based on the nature of the case. The distinction would be contrary to the principle of equality of arms, of which the importance is confirmed by the ECtHR in the case of Steel and Morris v the
United Kingdom in 2005. The Court emphasized that one of the main purposes of the Convention
is to make sure that individuals can exercise the rights herein in a practical and effective manner. This includes the ability for parties to a case to enjoy the same procedural rights, including legal assistance, either paid or on a pro bono basis, the possibility to have the same time as their
opponents for the preparation of their case and the same documentation at their disposal based on which they can build their case. Distinctions are only allowed when prescribed by law and on reasonable and objective grounds. In this case the applicants, named Steel and Morris, were denied free legal assistance in a case with regard to defamation, while the opponent in the case, fast-food restaurant McDonalds, enjoyed the legal assistance of a high-profile and thus expensive team of lawyers. Morris and Steel were unemployed which forced them to defend themselves in the case, leading to a violation of article 6(3) ECHR according to the Court.34
The Human Rights Committee has issued a General Comment 32 supporting the opinion of the Court in which it encourages Member States to support individuals in providing them free legal assistance in case these individuals do not have the means for legal representation, while the access to the judicial system and thus to court in many cases depends on the ability to be
represented by a lawyer.35 It seems that the desirable general goal is to provide legal assistance to
every individual in order to comply with the principle of equality and that, even if the articles 6(3)
33 S. v Switzerland [1991] ECHR 54, para 48.
34 Steel and Morris v the United Kingdom [2005] ECHR 103, paras 62, 67.
35 UN Human Rights Committee, CCPR General Comment 32 (2007), para 10.
ECHR and article 14(3) ICCPR appeared to have made a clear distinction between persons charged with a criminal offence and persons in civil proceedings, jurisprudence learns that deviation is possible but that the circumstances of every (civil) case has to be assessed.
17 How important is the right to privacy between the lawyer and the client?
This above-mentioned case of S. v Switzerland illustrates that it is generally accepted, following from the confidential nature of the connection between lawyers and their client, that in order for lawyers to exercise their profession properly and to protect their clients in an effective manner, their privacy should be guaranteed when discussing the confidential details of their case, either in person, digitally or by telecommunication. This right to the privacy with regard to the
communication between lawyers and their clients is surprisingly not laid down in neither article 6 ECHR, nor article 14 ICCPR as the ECtHR also confirms in the case of S. v Switzerland, which provisions can be regarded as the most appropriate means hereto. The jurisprudence of the HRC shows that is agrees on the views of the ECtHR, and it has confirmed the same in aforementioned General Comment 32.36 In the case of Sigareva v Uzbekistan the defendants lawyer was not
allowed to see him in private but always in the presence of a state official; the lawyer was only able to examine documentation with regard to the case in a very short time before the hearing and could therefore not prepare the case properly. The HRC stated in its decision that this lack of privacy in the communication between the lawyer and the defendant led to a violation of article 14(3) of the ICCPR.37
18 Are there implied rights which can be derived from the binding instruments?
It could be determined when considering the judgments from the ECtHR and the HRC and existing legal instruments on which I have elaborated above, that there are two appropriate treaty provisions which concern the rights connected to the legal assistance of lawyers, but unfortunately these rights cannot be invoked by the lawyers themselves and there are not any additional
guarantees incorporated for the protection of lawyers when concluding these treaties. However, as it is illustrated in the jurisprudence and opinions coming from both the ECtHR and the HRC, that there are specific rights as the mentioned right of a lawyer to communicate with his client in private, which are not laid down in these treaties, but do relate to these treaties. The importance of the right to privacy of the lawyer follows from the cases of S. v Switzerland and Sigareva v
Uzbekistan respectively, where both the ECtHR and the HRC have confirmed that the violation of
36 UN Human Rights Committee, CCPR General Comment 32 (2007), para 34.
37 Nazira Sigareva and Danis Sigarev, (2007) HRC, para 6.3.
this right to privacy led to a violation of the two mentioned treaty provisions. It is thus clear that the protection with regard to the freedom and independence of the exercise of the profession of lawyer is not laid down in binding international instruments. Judgments of treaty bodies have though made clear that some specific guarantees which relate to the profession of lawyer and which follow from these binding treaties, deserve attention on an international level. One could say that these rights are implied, despite the fact that they are not officially confirmed in treaties.
19 Under which circumstance can the right to legal assistance be restricted?
The ECtHR has issued a judgment in 2016 in which it has created a possibility to restrict the right to have access to legal assistance, in the case of Ibrahim and others v UK.3839 In its judgment the
Court stated that under certain compelling circumstances the right to access to a lawyer can be ‘delayed’ in the interrogation period, which situation can be regarded as similar to the denial of the right to access to legal assistance which is guaranteed by article 6 ECHR. In this case the Court elaborates further on the cases of John Murray v. the United Kingdom40 and Averill v. the United Kingdom.41 It states that in its view the access to legal assistance of the lawyer can be
delayed for necessary needs in the early stages of the interrogations, as long as the interrogations do not occur under coercive circumstances, for an unjustified long period or in a manner that the denial of access to legal assistance results in a violation of article 6 ECHR. The right not to incriminate him or herself, which also follows from article 6 ECHR is of a great value herein despite the compelling circumstances. Furthermore, the ECtHR also ruled the opposite on this topic in the case of Salduz v Turkey.42 Salduz was detained based on charges of the participation in
an unlawful demonstration supporting illegal organisation PKK. He was interrogated without a lawyer and confessed under duress and claimed to be physically assaulted by the police officers. According to the EctHR, early access to legal assistance is part of the procedural safeguards when someone is detained, as at this early stage a person is most vulnerable. In order to provide the right to a fair trial in a “practical and effective” way, article 6 ECHR sub 1 requires that, access to legal assistance should be provided as from the first interrogation by the police, "unless it is
38 Daniel Moeckli, Sangeeta Shah and Sandesh Sivakumaran, ‘International Human Rights Law’, (OUP 2018), p.273.
39 Ibrahim and others v United Kingdom, App nos 50541/98, 50571/08, 50573/08 and 40351/0913 (ECtHR, September 2016), para 74.
40 Murray v United Kingdom, App no 14310/88 (ECtHR, 24 October 1994), para 60. 41 Averill v United Kingdom, App no 36408/97 (ECtHR, 6 June 2000), para 59. 42 Salduz v Turkey, App no 36391/02 (ECtHR, 27 November 2008), para 63.
demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right."43
43 Salduz v Turkey, App no 36391/02 (ECtHR, 27 November 2008), para 55.
20 THE LEGAL FRAMEWORK: SOFT LAW INSTRUMENTS 21 Which role does soft law play in the international legal system?
The counterpart of the legally binding instruments which can be called ‘hard law’, is ‘soft law’. Soft law can be defined as a collection of instruments which are not legally binding, but which can attain a binding nature and contribute to the formation of new law, such as the conclusion of a new multilateral treaty. Soft law entails recommendations, declarations, bodies of conduct, general comments and guidelines with regard policies, issued by different international bodies.44 It is often
invoked when states or international organisations have not yet established a general consensus as a basis for the conclusion of a specific treaty or other binding legal obligations. The states or international organisations could thus decide to the adoption of soft law instruments supporting the establishment and development of international law, but also serving as an initial phase for the conclusion of a multilateral treaty. In the Gabčíkovo–Nagymaros Dam case the International Court of Justice stated in its judgment that soft law standards should be taken in consideration because such new standards show their relevance when establishing new law but also when developing already existing standards.45 Therefore, soft law has an important role in international law and is
often applied in relations between states and by international organisations.46 22 What does soft law say about the profession of lawyer?
With regard to the protection of the profession of lawyer, it seems that there is a variety of resolutions and recommendations which show the importance of a legal framework in order to achieve the appropriate protection. The starting point are the Basic Principles on the Role of Lawyers (the ‘Principles’), adopted in 1990 by the General Assembly.47 These Principles, referring
to other instruments as the Declaration on Human Rights and the ICCPR, enshrine fundamental requirements to guarantee that every individual has the access to legal services including the assistance of lawyers. Rules with regard to the training of lawyers are laid down, in order for the lawyers to be able to exercise their profession properly. Some specific and striking guarantees which are laid down in these Principles, are the guarantees for the functioning of the lawyers and the freedoms of expression and association. They even include the protection against threats,
44 Malcolm D. Evans, International Law (OUP 2018), p. 119. 45 Gabčíkovo–Nagymaros Dam case, ICJ Reports, 1997, para 140. 46 Gleider Hernández, International Law (OUP 2019) para 2.3.4.
47 United Nations, Basic Principles on the Role of Lawyers, 7 September 1990, <https://www.refworld.org/docid/3ddb9f034.html> accessed 7 November 2019.
harassment, hindrance in any way and prosecution. As they evidently contribute to the promotion and protection of the rule of law and guarantee the protection of the profession of lawyer by means of an extended system of rights, the Principles form the basis for the work of and are often referred to by international organisations as Lawyers for Lawyers and the Council of Bars and Law Societies of Europe (the ‘CCBE’). Lawyers for Lawyers is a non-political non-governmental organisation which globally supports human rights lawyers who are at risk. The CCBE is an organisation which represents bars and law societies of 32 Member States of the Council of Europe and a significant amount of additional countries. Lawyers for Lawyers works in close connection with international organisations as Amnesty International and the International Commission on Jurists who have a broad international network, which means that the existence and importance of the Principles are globally promoted.48 The work of the CBBE entails de
adoption of several documents as so called position papers and letters with regard to the situation of lawyers and the status of the law in different countries.49
The Principles have been a basis for a recommendation of the Committee of Ministers of the Council of Europe (the ‘Committee’), adopted on 25 October 2000 (Recommendation 2000).50 In
Recommendation 2000 the Committee, referring to the above-mentioned Principles, emphasizes the fundamental role of lawyers in the protection of human rights law and fundamental freedoms, and it promotes the freedom of exercise of the profession of lawyer, which can be guaranteed through a fair system of administration. As also stressed in the Principles, the Committee laid down in the very first article of the Recommendation that ‘all the necessary means should be taken to respect, protect and promote the freedom of the exercise of the profession of lawyer, without interference from state authorities’. As it builds further on what is confirmed in the Principles, the nature of this instrument is quite similar. This also counts for a resolution, issued by the
Parliamentary Assembly with regard to the protection of human rights defenders.51 This resolution
stresses the invaluable work of human rights defenders and the importance of their protection as they face serious situations of threats and harassments relating to their work. This is also strongly encouraged by organisations as the International Commission of Jurists and Lawyers for Lawyers,
48 What are the Basic Principles? <https://lawyersforlawyers.org/en/basic-principles/> accessed 8 November
2019
49 <https://www.ccbe.eu/documents/documents-by
theme/?idC=529&Committee=Human%20Rights%20Committee&Themes> accessed 8 November 2
50 Council of Europe: Committee of Ministers, Recommendation No. R (2000) 21 of the Committee of Ministers
to member states on the freedom of exercise of the profession of lawyer, 25 October 2000, R (2000) 21.
51 Council of Europe, Parliamentary Assembly Resolution 2095 (2016) on Strengthening the protection and role
of human rights defenders in Council of Europe member States, 28 January 2016, S/RES/2095 (2016).
above-mentioned. The International Commission of Jurists is a non-governmental organisation that is established with the main goal to protect human rights and to promote the protection and maintenance of the rule of law globally. The International Commission of Jurists has stated that is supports the proposal of the Parliamentary Assembly in the Recommendation calling for the establishment of a Council of Europe Convention on the Profession of Lawyer. It believes that such a Convention could make an essential contribution to the enforcement of the rule of law and the protection of human rights globally, relying on the standards of the Council of Europe and jurisprudence of the European Court of Human Rights.52
From the above it follows that the protection provided by the existing soft law instruments, is just that protection that is needed by means of a legal instrument as the soft law instruments could not be legally enforced. The soft law instruments provide the independence of the lawyer to exercise their profession freely, without interference of governmental authorities, while enjoying the right to freedom of expression which is necessary to exercise the profession of lawyer. The legal power of the soft law instruments lie in the authoritative nature when they are issued in the form of resolutions and decisions by the General Assembly of the United Nations for example. These instruments include recommendations and views with regard to existing binding treaty provisions or customary law.
23 Can soft law transform into hard law?
As shown above, soft law instruments can serve as the initial step in the conclusion of a new multilateral treaty. International bodies who are authorized to adopt soft law instruments can issue views with regard to existing law and on the need of additional instruments.
The fact that authoritative bodies as the General Assembly, the Committee, and the Parliamentary Assembly have adopted these specific documents in order to promote the awareness of the
position of lawyers in our international community, taking into account the importance with regard to the protection of the rule of law, evidently shows that there is a need for a change in the organisation of the international legal framework, which can only be initiated by authorized international bodies. Events as illustrated above with regard to the threatened lawyers worldwide show that soft law instruments as Recommendation 2000 are not sufficiently effective.
Therefore, the above-mentioned Motion was followed by a recommendation on the drafting of a new Convention (the ‘Recommendation’) of the Parliamentary Assembly on 24 January 2018, 52 International Commission of Jurists, <https://www.icj.org/about/> accessed on 8 November
2019.
discussing the finding in the report of Ms Lahaye-Battheu.53 The Recommendation reaffirms what
the Parliamentary Assembly had stated in its Motion, and sets out the legal frame in which the new Convention should be implemented. This shows that a soft law instrument as the
Recommendation could possibly lead to the establishment of a new Convention, which is legally binding.
24 Could the new Convention be drafted as an additional Protocol to the European Convention on Human Rights?
An option to add one or more rights to the Convention or to amend certain specific provisions hereof, exists in the option to add a protocol to the Convention. Since de establishment of the Convention in 1950, several additional protocols have been adopted. The nature of these protocols varied from adding new rights to the Convention to reflecting different views on a specific right within the Council of Europe. The additional nature of the protocol requires ratification by all the Member States to the Convention; a State that has merely signed the additional protocol without ratifying it will not be bound by its provisions.54
When taking into account the Recommendation and the request herein to establish a convention which will also be open to accession by non-Member States it should be concluded that an additional protocol to the Convention is not an appropriate means to establish a new convention on the profession of lawyer, while according to article 59(1) ECHR accession to the Convention is only possible for members of the Council of Europe.
53 Council of Europe, Parliamentary Assembly Recommendation, Doc. 2121 (2018) on The Case for
drafting a European Convention on the profession of lawyer, 24 January 2018.
54 William A. Schabas, The European Convention on Human Rights, A commentary (OUP 2015), p. 13.
25 DRAFTING A NEW CONVENTION ON THE PROFESSION OF LAWYER
26 What should be the scope of a new international instrument?
In the Motion and the Resolution for the drafting of the new Convention the Parliamentary
Assembly underlines the fundamental role of lawyers and association of lawyers with reference to the above-mentioned Principles and Recommendation 2000 but stressed that these documents are of insufficient legal force as they are soft law instruments. The Parliamentary Assembly therefore calls for the conclusion of a binding instrument which is binding and should resort more effect in cases of violation of provisions thereof. According to the Parliamentary Assembly the newly established convention should reinforce the legal status of the provisions which are laid down in Recommendation 2000 by incorporating these provisions in the new convention; furthermore, the convention could also become a more universal instrument as it should allow states who are not a Member State to the European Union to accede to become a party. This will contribute to a more effective promotion and protection of the rule of law on a larger global scale.
27 Should the new convention build further on the existing binding instruments?
Recommendation 2000 includes provisions which are similar to articles 6, 8 and 10 of the ECHR and article 14 ICCPR and the guaranteed rights herein. This includes the right to freedom of belief, expression, movement and assembly, in combination with the access to their client, the possibility to prepare a case properly by means of access to relevant documentation and equality before the court. These provisions should therefore not be included in the new convention as this would unnecessarily duplicate guarantees which are already laid down in the existing treaty provisions and it would distract from the importance of the additional value of the provisions specifically concerning the profession of lawyer. As the new convention will be based on Recommendation 2000 which has reiterated the importance of the ECtHR, reference should be made to these relevant provisions of the ECtHR.
In its Recommendation for the drafting of the European Convention, the Parliamentary Assembly has called on the Committee to consider several soft law instruments when drafting the European Convention.55 The instruments include the Charter of Core Principles of the European Legal
Profession of the CCBE56, the International Association of Lawyers’ Turin Principles of
55 Council of Europe, Parliamentary Assembly Recommendation, Doc. 2121 (2018) on The Case for
drafting a European Convention on the profession of lawyer, 24 January 2018, para 7.1.1. 56 CCBE Charter of Core Principles of the European Legal Profession,
https://www.ccbe.eu/NTCdocument/EN_CCBE_CoCpdf1_1382973057.pdf accessed 8 November 2019.
Professional Conduct for the Legal Profession in the 21st Century57 and the International Bar
Association’s Standards for the Independence of the Legal Profession, International Principles on Conduct for the Legal Profession and Guide for Establishing and Maintaining Complaints and Discipline Procedures.5859 These main purpose what these instruments have in common is to
provide lawyers a judicial system, in which they can perform their professional duty
independently and without interference. They emphasize the importance of the central role that the lawyers play in the judicial system, and state that relating hereto their independence is of great importance in order to uphold and maintain the rule of law. The different instruments have established a set of rules in order to achieve this main purpose. The purpose mentioned in the Recommendation is similar to that of the organisations mentioned above; it could therefore be of supportive matter for the establishment of the European Convention.
28 Which requirements for the profession of lawyer should the new Convention include?
Every domestic legal system has established a specific system of rules in which requirements are set with regard to the exercise of the profession of lawyer. When establishing the European Convention, it should be determined clearly which definition of lawyer is applicable.
Recommendation 2000 defines lawyer as ‘a person qualified and authorized according to the national law and 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’. This definition is quite general and clear which is desirable as I have assessed above in 3.1, because distinctions should not be made between the practice of lawyers in different areas of law or whatsoever. The definition of lawyer in Recommendation 2000 shows that the assignment of the qualification and authority for persons to be able to exercise the profession of lawyer, is the responsibility of the national governments. The Committee should therefore take into account that a great number of countries have adopted laws and regulations which make it very hard or sometimes even
impossible for lawyers to practice their profession.60 Based on these laws regulations the definition
as mentioned in Recommendation 2000 could not be applicable to these lawyers as they can be
57 UIA Turin Principles of Professional Conduct for the Legal Profession in the 21st Century,
https://www.uianet.org/sites/default/files/charteturin2002-en.pdf accessed 8 November 2019.
58 IBA Standards for the Independence of the Legal Profession, International Principles on Conduct for the Legal
Profession and Guide for Establishing and Maintaining Complaints and Discipline Procedures, < https://www.ibanet.org/Publications/publications_IBA_guides_and_free_materials.aspx> accessed 8 November 2019.
59 Council of Europe, Parliamentary Assembly Recommendation, Doc. 2121 (2018) on The Case for
drafting a European Convention on the profession of lawyer, 24 January 2018.
60 Council of Europe, Committee on Legal Affairs and Human Rights, Report, Doc. 14453 (2017) on The Case
for drafting a European Convention on the profession of lawyer, 15 December 2017, para 12.
regarded as ‘not qualified and authorized’, causing them to fall outside the scope of the new convention. I would like to emphasize that it is of crucial importance that these lawyers in
particular can enjoy the rights which are enshrined in the new convention, taking into account the alarming circumstances in which they have to perform their duties.
Further to the Recommendation, the new convention should guarantee the access to lawyers and also the right of the lawyers to communicate with their clients in person or from a distance, under private circumstances.61 They should be assigned legal professional privilege, civil and criminal
immunity while performing their professional duties. Following from the jurisprudence of the ECtHR which I have assessed above in the case of S. v Switzerland, this right to the privileged circumstances in which lawyers should communicate with their clients, is an essential element of the right to a fair trial in a democratic society. The ECtHR also concluded in its judgment that this right was not guaranteed in existing treaty provisions, so the establishment of a new convention would be a great opportunity to have this right laid down in a binding instrument.
29 How should an effective control mechanism be established?
In order to make sure that the State Parties act in compliance with the provisions which are enshrined in the new convention, an effective control mechanism should be established which should be swift, accessible and simple. Considering the compelling character of the rights at stake, such a mechanism is required in order to provide Europe-wide scrutiny. The basis of this
mechanism should be sought in the existing institutional system of the Council of Europe or perhaps the existing mechanisms of the State Parties, as it would be a time consuming and costly manner to establish a total new independent body in order to monitor compliance of the new convention. Reliance on the structures of the State Parties could enhance compliance of a larger scale. Building an effective control mechanism has been common practice when concluding conventions of the Council of Europe, which is confirmed by Ms Layahe-Battheu in her report on the Motion.62 The body monitoring compliance should receive regular reports from the State
Parties with regard to the implementation into their domestic legal systems; this has been a common practice with the existing conventions and should also be incorporated in the new convention. In order to promote transparency, it should also be possible for lawyers’ association and other organisations to submit applications.63
61 Council of Europe, Parliamentary Assembly Recommendation, Doc. 2121 (2018) on The Case for
drafting a European Convention on the profession of lawyer, 24 January 2018, para 7.1.2.
62 Council of Europe, Committee on Legal Affairs and Human Rights, Report, Doc. 14453 (2017) on The Case
for drafting a European Convention on the profession of lawyer, 15 December 2017, para 27.
63 Council of Europe, Committee on Legal Affairs and Human Rights, Report, Doc. 14453 (2017) on The Case
30 The text of the European Convention on the Profession of Lawyer
Considering that a new convention will be established by means of the incorporation of most of the provisions laid down in Recommendation 2000, the newly established ‘European Convention on the Profession of Lawyer’ (the ‘European Convention’) should by all means include the elements in this Recommendation 2000, containing the relevant safeguards for the lawyers in the exercise of their profession.
31 Is the establishment of an early-warning mechanism desirable?
In order to enhance the effectiveness of the European Convention and to urgently respond to the immediate situations of lawyers who are under threat, the Parliamentary Assembly has also called for the establishment of an early-warning mechanism. This early-warning mechanism should be based on the ‘Platform to promote the protection of journalism and safety of journalists’.64 In
connection herewith the Assembly calls for the implementation of its Recommendation which it has adopted in 2016 on the ‘strengthening of the protection and role of human rights defenders in Council of Europe member States to establish a platform for the protection of human rights defenders, which would include lawyers’.65 The early-warning system which is established for the
protection of journalists, is based on a system where different contributors are allowed to submit information to a specific platform with regard to possible threats to journalists. The contributors are responsible for the quality of their submissions, which are subject to four criteria with regard to:
(i) the concern with regard to media freedom; this should be of a most serious nature; (ii) the alleged threat or violation, which should occur in one of the 47 Council of Europe
member States;
(iii) the reliability of the information; and if this information is based on facts; and
(iv) the question if the information is already published on another platform and if not, if there is a consent of persons who are identified or identifiable to publish this alert.
for drafting a European Convention on the profession of lawyer, 15 December 2017, para 27.
64 Platform to promote the protection of journalism and safety of journalists,
https://www.coe.int/en/web/media-freedom/the-platform> accessed on 8 November 2019.
65 Council of Europe, Parliamentary Assembly Recommendation, Doc.2085 (2016) on ‘Strengthening the protection and role of human rights defenders in Council of Europe member States to establish a platform for the protection of human rights defenders, which would include lawyers, 28 January 2016, para 7.1.2.
Considering the nature of the rights at stake which call for immediate action, the early-warning mechanism as illustrated above does not seem to be appropriate to address possible threats in an urgent matter. The fact that there is a source consisting of multiple contributors to submit information which should first be assessed by means of the four criteria above, raises the question on how immediate the situations at hand can be dealt with.
The European Convention will be established because of the immediate nature of the situation of lawyers, which is known and confirmed in the soft law documents, adopted by relevant professional bodies, to be most serious. The first criterion would therefore be of no use when applying this to the early-warning mechanism with regard to the situation of lawyers.
As the European Convention should be accessible to not only Member States of the Council of Europe but also non-Member States, a restriction to states to which the early-warning mechanism applies is not necessary. A criterion as the second one would not be suitable to be incorporated in an early-warning mechanism relating to the situation of lawyers. When it comes to serious threats of violence and even death, I believe that reliability of information should not be of importance. Allowing different contributors to submit information under criteria such as this one, should also not be a part of the early-warning mechanism when it comes to the situation of lawyer at risk. The early-warning mechanism also provides the Council of Europe and a Member State which are directly referred to in information which is submitted, to post reports when they consider it necessary for one of their respective organs and institutions to take action in response to that information. This can only be done ‘when the circumstances allow it’. This may seem an effective and useful means in principle because a report which is issued by a professional expert body which is much respected in the international community should resort much effect as we have seen in this research, but the effect will be of less importance if the reports will only be issued in a limited number of circumstances. Furthermore, it is very vague and unclear under which
circumstances it will be allowed and thus when it can be expected that a report with regard to a possible situation which may ask for immediate action, will be issued.
The Steering Committee for Human Rights, an expert body which is established by the Committee with the duties to advise the Committee and provide legal expertise with regard to issues
concerning the Convention, has also considered the possible adoption of an early-warning
mechanism. It concluded that it could be useful for short-term solutions and immediate replies, but not for long-term solutions.66
According to the Annual Report by the Partner Organisations to the Council of Europe Platform to Promote the Protection of Journalism and Safety of Journalists 2019, only 39% of the states who were addressed in information with regard to serious and verified threats to media freedom in 2018 posted on the platform of the early-warning mechanism for the protection of journalists, have responded hereto. Only a few of these responses have moved states to provide necessary remedies or to implement amendments of their laws and practices.67 These current statistics show
that the early-warning mechanism is not an appropriate and effective means for the protection of journalists and should therefore not be implemented in the European Convention. The nature of the situation of the profession lawyer requires an effective and appropriate mechanism, which ensures compliance by and cooperation of at least a majority of the Member States.
32 CONCLUSION
This research has aimed to determine whether a new Convention on the Profession of Lawyer would be a necessary additional instrument to the already existing binding instruments, which guarantee a specific set of fundamental rights. Practice has learned that there is an increasing amount of countries in which lawyers are forced to exercise their profession while facing threats and interferences by their governments, relating to their professional activities. This practice has been reported by several independent international organisations and expert bodies. According to the jurisprudence of the most prominent courts of international human rights law, it is necessary in a democratic society that the rule of law is well-protected as it is a central element of our system of justice. Lawyers have a prominent role in our community who have the duty to promote and protect the rule of law, therefore the above-mentioned courts have confirmed in their judgments that lawyers should exercise their profession independently and free from interferences. Their opinion is shared by a great number of non-governmental organisations, whose main goal is focussed on protecting the rule of law and create awareness about the importance of the protection of the profession of lawyer.
66 CDDH(2018)R89, para 2.
67 Annual Report by the Partner Organisations to the Council of Europe Platform to Promote the Protection of Journalism and Safety of Journalists 2019, p. 13.
In this regard this research has determined which international provisions can be invoked by lawyers when they are a victim of attacks and interferences which are related to their profession. There are two binding treaty provisions which include lawyers as a necessary intermediary in the legal system, but which do not refer to the protection of the lawyers while performing their duties. Furthermore, there is a variety of soft law documents which specifically refer to the protection of lawyers but which are not binding. The adoption of an additional binding instrument would therefore be necessary in order to provide the lawyers the effective and appropriate protection they require on the basis of the protagonist role they play in our community. Participation of as many State Parties to the new convention would lead to dialogue and cooperation, which will ensure a widespread distribution of information and awareness about the situation of lawyers.68 It can be
regarded as an important political message with regard to the importance of the protection of the legal profession and could lead to the encouragement for State Parties to effectively adopt measures for the protection of its safety and independence.
While there is a legal system consisting of binding instruments which effectively guarantees the protection of core fundamental rights, there is an even more comprehensive system consisting of an even larger set of instruments with regard to the fundamental importance to the profession of lawyer, but which are not of a binding nature. The most obvious and adequate added value of a Convention on the Profession of Lawyer would be its binding nature. As this new binding instrument would build further on the provisions of the already existing binding instruments, it enhances the effectiveness of the legal frame in which the fundamental rights are guaranteed and thus the rule of law.
68 Fiona de Londras and Kanstantsin Dzehtsiarou, “Great Debates on the European Convention on Human Rights”, (MacMillan Publishers Ltd. 2018), p.40.
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