When their rights are violated, citizens lose faith in the administration of justice and the rule of law. It is the role of lawyers in society to uphold and defend the rule of law for citizens

When I was appointed Secretary-General of the Council of Bars and Law Societies of Europe in March of this year, I felt privileged to have been entrusted with the representation of the legal profession by delegations from forty-five European countries.

My role is to manage the 9-strong team at our office in Brussels; prepare the meetings of the Standing Committee, the decision-making body of the CCBE; represent the legal profession with the institutions of the European Union and the Council of Europe; and carry our message to the public and the media.

It is of course a challenge to take over the management of an organisation with a long history – the CCBE was founded in 1960 at the onset of the European project – and a wide membership, with thirty-two full members and thirteen associates and observers, representing every lawyer in the twenty-eight Member States of the European Union.

We are all working together to defend the profession, and share a definition of the rule of law, access to justice and the rights of the defence. We must deal with the differences between judicial traditions, between common law and civil law; but that is not an obstacle when there is a need to get together on issues that flow over borders and affect us all.

My first and foremost priority is to fight back against the encroaching regimes of mass surveillance put in place by governments to indiscriminately sweep up private communications.

In all EU Member States, the law protects from disclosure of information communicated in confidence between lawyer and client. When governments around the world intercept email correspondence, telephone calls, instant messages, and cloud storage using indiscriminate, non-suspicion-based surveillance it impacts access to justice, equality of arms and the rule of law.

When their rights are violated, citizens lose faith in the administration of justice and the rule of law. It is the role of lawyers in society to uphold and defend the rule of law for citizens. Lawyer-client confidentiality and the protection of client data are key components of this role. Without trust and confidentiality, access to justice and the rule of law cannot be guaranteed.

The CCBE took up this issue with policy-makers and makes it a key component of its communication with the European Commission, the European Parliament and the governments of the Member States. The CCBE calls for a minimum level of legal protection afforded to professional the European secrecy from government electronic surveillance , which could be included in the project to establish a European ‘Digital Habeas Corpus’.

Very recently, MEPs raised concerns about interception of phone calls between lawyers and their clients by intelligence services across Europe in a debate in Plenary Session with the Presidency of the EU and the Commissioner for Justice in January. The issue invited itself on the agenda following the recent admission by the Minister of the Interior of the Netherlands that the Dutch Intelligence and Security Agency (AIVD) had been spying for years on an Amsterdam-based law firm.

According to data collected by the CCBE, communications between lawyers and their clients have been monitored over the last few years by police or intelligence services in similar cases in France, the United Kingdom, Ireland, the Czech Republic and Latvia.

The British government admitted in February that its intelligence services had been unlawfully monitoring conversations that should have been protected by lawyer-client confidentiality. As in the Dutch Case, it is lawyers handling politically sensitive cases who have been targeted in a worrying mix-up between intelligence gathering for strategic purposes on the one hand, and law enforcement on the other.

In this context, the CCBE called upon the EU institutions to take steps to protect and enhance the confidentiality of private communications with the following:

  • A level of legal protection for professional secrecy from government electronic surveillance should be established, along with guidelines for privacy in electronic surveillance of citizens that would place reasonable limits on the exception of national security;
  • Technical standardisation should be more widely promoted, either through the possibility of setting up accounts that are subject to greater protection against data mining, or in the area of instruments of international law , where the following could be envisaged: stronger Safe Harbour principles, optional protocols to Article 17 of the International Covenant on Civil and Political Rights, adoption of more specific and detailed exceptions under Article 9 of Convention 108 for the Protection of Individuals with regard to Automatic Processing of Personal Data, higher standards for data processing by administrations, a single comprehensive data protection regime, and better guarantees on the use of cloud computing;
  • The task of ensuring these requirements should be entrusted to a designated EU institution with the powers to exercise control and issue opinions.

 

In parallel the CCBE is active in the promotion of EU-wide standards for e-justice networks, with a view to ensuring the quality of cross-border proceedings and guiding the integration of national systems for cross-border use. These standards should focus on a working e-justice framework that lightens the workloads of the courts, makes use of successful existing systems, increases access to justice for citizens, and saves small businesses time and money. Harmonised minimal standards can improve quality, reduce costs, and create working relationships between the judiciaries in different countries, building through everyday use a reliable ‘network of trust’ between judges from different legal traditions.

As primary users alongside the judiciaries, legal practitioners should be involved in the design and implementation of new systems, keeping in mind the equality of arms in the courtroom and the need for training, so that the administrative burden is not simply shifted onto lawyers.

To this end, the CCBE is undertaking a number of key projects: e-CODEX (e-justice Pilot), EVIDENCE (cross-border transmission of evidence), iSupport (cross-border recovery of maintenance obligations), the Multi-Aspect Initiative to Improve Cross-Border Videoconferencing, and the Find-A-Lawyer 3 search engine.

 

In the area of criminal law, the 2009-2014 EU programme for justice will not be renewed, the Member States having settled for a less ambitious plan focusing on consolidating existing areas of cooperation instead of breaking new ground.  We have nonetheless made a number of proposals in support of effective legal assistance, dual representation in cross-border cases, training for lawyers to keep up with developments in criminal law, harmonised definitions for crimes contained in EU law, and easy access to information on the rights of victims and suspected or accused persons.

As part of measures voted recently, CCBE follows the implementation of the Directive on the right of access to a lawyer in criminal proceedings and in European Arrest Warrant proceedings, adopted on 22 October 2013, for transposition into national law by November 2016. It lays down minimum rules, and includes the right to have a third party informed upon deprivation of liberty and the right to communicate with third persons and with consular authorities while deprived of liberty.

This instrument turned out to be a boon in the fight against mass surveillance in defense of legal professional privilege, thanks to its Article 4 which recognises ‘the confidentiality of communications between suspects or accused persons and their lawyer in the exercise of the right of access to a lawyer’. It remains today the only EU legal instrument spelling out the protection of legal professional privilege so clearly. But how are national governments proceeding with the transposition? How quickly, and how well are the provisions transposed into law?

To this effect, the CCBE started in April 2015 the TRAINAC project for the Assessment, good practices and recommendations on the right to interpretation and translation, the right to information and the right of access to a lawyer in criminal proceedings.

This project, co-funded by the European Commission, will conduct a comprehensive analysis of the implementation of three Directives: on the right to interpretation and translation; on the right to information; and on the right of access to a lawyer.

Over the course of a year the research team will identify good practices, issue recommendations, and look at how the Directives have been implemented at a national level and whether they have been implemented in accordance with the legislation.

The CCBE also works globally to defend the ability of lawyers globally to practice their profession freely without harassment or hindrance.

Since 2007, the CCBE has annually granted a Human Rights Award to a lawyer or lawyers’ organisation that has brought honour to the legal profession by upholding the highest values of professional and personal conduct in the field of human rights. The CCBE writes regularly to the governments of countries where lawyers are victims of human rights violations as a result of their professional work (e.g. harassment, threats, imprisonment), reminding them of their obligations under the 1990 United Nations Basic Principles on the Role of Lawyers. In 2014, fifty-one letters were sent to thirty-two heads of government. The UK gained the distinction of being the only EU and OECD country in the list due to the intimidation and harassment targeting Mr. Phil Shiner, a human rights lawyer who received death threats against both him and his family..

In the most serious cases, the CCBE pursues extra initiatives. In addition to letters sent to the relevant government and Brussels embassy, the CCBE alerts important players at EU level, such as the EU Special Representative for Human Rights or the European External Action Service as well as relevant services at the Commission and European Parliament.

The CCBE is also active in Central and Eastern Europe with its PECO (Central and Eastern European Countries) Committee, created in the 1990s to address the specific challenges faced by burgeoning democracies following the fall of totalitarian rule: reforming justice systems, building new representative institutions for the legal profession, and creating the framework and necessary protections for the rule of law.

With its network of experts, the PECO Committee promotes the rule of law and supports law reform processes in the countries it covers: full, associate and observer members of the CCBE from Central and Eastern Europe as well as Belarus and Azerbaijan. It provides assistance to bars in these countries through by sharing expertise, publishing studies and organising seminars or conferences.

The promotion of the Charter of core principles of the European legal profession and Code of Conduct for European lawyers are also a key part of the work undertaken in the field of ethics. Additional activities cover mediation, representation of clients, surveys, seminars, regional bar meetings and conferences. Infringements on fundamental rights and attacks against lawyers are obviously a major concern, and contacts are made with national governments and with the institutions of the European Union when grave violations occur. Two of our latest cases involve the  bombing of two law firms in Bosnia-Herzegovina, causing the death of lawyer Jasmina Koričić, and the assassination of lawyer Vlatko Vidakovic at his office in Osijek, Croatia.

The situation in Ukraine is a matter of particular attention as well, and the PECO members are especially active in monitoring the impact of the conflict on the legal profession, providing support where needed and encouraging dialogue. To this effect, a CCBE fact-finding mission was dispatched to Ukraine and published two reports in July 2013 and February 2014. Our cooperation with our Ukrainian colleagues will continue, with a Conference in partnership with the European Lawyers’ Foundation and the International Bar Association on ‘Representation by lawyers in court proceedings’ to take place on 5-6 June 2015 in Kiev, Ukraine.

 

By Philip Buisseret the new Secretary-General of the CCBE, taking over from Jonathan Goldsmith, who stepped down in January after 13 years as the head of the Brussels office.

With a Masters of Law from the Catholic University of Leuven (KUL), Belgium, Philip has previous experience at the service of regulated professions as Deputy General Manager and then Director of the National Chamber of Notaries of Belgium. He is fluent in English, Dutch and French.

 

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