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Recommendation 2121 (2018)
The case for drafting a European convention on the profession of lawyer
1. The Parliamentary Assembly concurs
with the view of the European Court of Human Rights that the specific
role of lawyers gives them a central position in the administration
of justice, as protagonists and intermediaries between the public
and the courts. They play a key role in ensuring that the courts,
whose mission is fundamental in a State based on the rule of law,
enjoy public confidence. For members of the public to have confidence
in the administration of justice they must have confidence in the
ability of lawyers to provide effective representation.
2. The Assembly subscribes to the minimum standards set out in
Committee of Ministers’ Recommendation No. R (2000) 21 to member
States on the freedom of exercise of the profession of lawyer. It recalls
that these standards, although non-binding, are intended to elaborate
upon and give practical effect to principles flowing from binding
obligations, notably those of the European Convention on Human Rights (ETS No.
5).
3. It is therefore a matter of utmost concern that harassment,
threats and attacks against lawyers continue to occur in many Council
of Europe member States and are even increasing in some of them,
where they have become widespread and systematic and are apparently
the result of deliberate policy. These include, amongst other things:
killings, which are sometimes inadequately investigated by the authorities;
physical violence, including by public officials; threats, unjustified
public criticism and identification of lawyers with their clients, including
by leading politicians; abuse of criminal proceedings to punish
lawyers or remove them from certain cases; violation of legal professional
privilege through unlawful monitoring of clients’ consultations
with their lawyers; search and seizure in the course of unlawful
investigations; interrogation of lawyers as witnesses in their clients’
criminal cases; abuse of disciplinary proceedings; and various structural
and procedural failures to establish and implement effective guarantees
of lawyers’ independence.
4. The Assembly considers that this situation demonstrates the
need to reinforce the legal status of Recommendation No. R (2000) 21
by translating its provisions into a legally binding convention,
with an effective control mechanism. Such a convention could also
become a source of binding standards on the wider international
level by allowing non-member States to accede to it.
5. Given the role of lawyers in the day-to-day protection of
individual rights, including in ongoing judicial proceedings, the
Assembly considers that there is also a need for an early-warning
mechanism to respond to immediate threats to their safety and independence
and to their ability to perform their professional duties effectively.
It recalls the Council of Europe’s existing Platform to promote
the protection of journalism and safety of journalists and considers
that a similar mechanism for lawyers would be of equal practical
effectiveness, procedural efficiency and technical feasibility in
the present context.
6. The Assembly therefore calls on member States of the Council
of Europe to fully respect, protect and promote the freedom of exercise
of the profession of lawyer, including through effective implementation
of Recommendation No. R (2000) 21.
7. The Parliamentary Assembly calls on the Committee of Ministers
to:
7.1. draft and adopt a convention
on the profession of lawyer, based on the standards set out in Recommendation
No. R (2000) 21, and in doing so:
7.1.1. take account also
of other relevant instruments, including the Council of Bars and
Law Societies of Europe’s Charter of Core Principles of the European
Legal Profession, the International Association of Lawyers’ Turin
Principles of Professional Conduct for the Legal Profession in the
21st Century 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;
7.1.2. ensure that guarantees in relation to fundamental issues
such as access to a lawyer and lawyers’ access to their clients,
legal professional privilege, civil and criminal immunity for statements
made in the course of their professional duties and the confidentiality
of lawyer-client communications are reinforced as necessary in order
to respond to developments in the surrounding legal and regulatory
context, including measures introduced to counter corruption, money
laundering and terrorism;
7.1.3. include an effective control mechanism, giving particular
consideration to the option of a committee of experts examining
periodic reports submitted by States parties, with the possibility for
civil society organisations, including lawyers’ associations, to
make submissions;
7.1.4. consider opening the convention to accession by non-member
States;
7.2. establish an early-warning mechanism to respond to immediate
threats to lawyers’ safety and independence and to their ability
to perform their professional duties effectively, modelled on the Platform
to promote the protection of journalism and safety of journalists.
In this connection, the Assembly reiterates the call made in its Recommendation 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;
7.3. set up activities, including bilateral co-operation activities,
to enhance implementation of Recommendation No. R (2000) 21, pending
ratification of a new convention by member States;
7.4. fully implement Recommendation
2085 (2016).