Print
See related documents
A. Draft Opinion
(open)
Report | Doc. 16102 | 28 January 2025
Draft convention for the protection of the profession of lawyer
Committee on Legal Affairs and Human Rights
Summary
The Committee on Legal Affairs and Human Rights warmly welcomes the finalisation of the draft Council of Europe Convention for the Protection of the Profession of Lawyer by the Committee of Experts on the Protection of Lawyers (CJ-AV) and the European Committee on Legal Co-operation (CDCJ). It shares the view of the European Court of Human Rights that lawyers have a crucial position in the administration of justice, playing a key role in ensuring public confidence. Lawyers increasingly become targets of threats, intimidation and attacks due to their professional duties.
The draft Convention introduces structured legal protection for lawyers, promoting the right to practise without fear of discrimination, improper hindrance, or interference. It will be the first-ever international treaty focusing on this matter, with provisions applying to licensed lawyers and individuals representing applicants before international courts and human rights protection bodies. Furthermore, the draft Convention establishes standards for professional associations of lawyers and sets up a robust monitoring mechanism.
The Committee on Legal Affairs and Human Rights regrets the lack of specific provisions for using secret surveillance against lawyers. Additionally, it emphasises the need to prohibit formulating reservations to ensure full implementation of the Convention, which aligns with the intention of the CJ-AV. The committee supports the draft Convention's adoption and looks forward to its opening for signature and ratification.
A. Draft Opinion 
(open)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, and 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 the Committee of Ministers’ Recommendation No. R(2000)21
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 No. R(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
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 No. R(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, including
several professional associations of lawyers.
9. The Assembly appreciates 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
licenses, 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 licenced lawyers but 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 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. Whilst 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
to fulfil its purpose, the Assembly proposes the following amendment
to the draft Convention:
16. 15.1 in Chapter V, add the following article: “No reservation
may be made in respect of the provisions of this Convention.”
17. 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.
B. Explanatory memorandum by Mr Vladimir Vardanyan, rapporteur
(open)1. Introduction
1. In 2018, the Parliamentary
Assembly 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 No. R(2000)21 of the Committee of Ministers
to member States on the freedom of exercise of the profession of
lawyer, 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.
In response thereto, the Committee of Ministers instructed the European Committee
on Legal Co-operation (CDCJ), in close consultation with the other
relevant committees, to prepare a feasibility study identifying
the possible added value of drafting a convention, taking account
of the protection provided by other Council of Europe instruments,
in particular the European Convention on Human Rights (ETS No. 5)
and the case law of the European Court of Human Rights.
2. In response to the CDCJ’s study, the Committee
of Ministers established, as of January 2022, a Committee of Experts
on the Protection of Lawyers (CJ-AV). It was tasked with the elaboration
of a legal instrument aimed at strengthening the protection of the
profession of lawyer and the right to practise the profession without
prejudice or restraint, under the authority of the Committee of
Ministers and of the CDCJ. The CJ-AV consisted of fifteen representatives
of member States, as well as participants and observers, including
Avocats Sans Frontières, the Council of Bars and Law Societies of
Europe (CCBE), the European Bars Federation (FBE), the European
Association of Lawyers (EAL), the European Criminal Bar Association (ECBA),
the International Bar Association (IBA) and its Human Rights Institute
(IBAHRI), the International Commission of Jurists (ICJ), the International
Association of Lawyers (UIA), the “Lawyers for Lawyers” foundation
and the International Observatory of Endangered Lawyers (OIAD).
the Committee
of Ministers established, as of January 2022, a Committee of Experts
on the Protection of Lawyers (CJ-AV). It was tasked with the elaboration
of a legal instrument aimed at strengthening the protection of the
profession of lawyer and the right to practise the profession without
prejudice or restraint, under the authority of the Committee of
Ministers and of the CDCJ. The CJ-AV consisted of fifteen representatives
of member States, as well as participants and observers, including
Avocats Sans Frontières, the Council of Bars and Law Societies of
Europe (CCBE), the European Bars Federation (FBE), the European
Association of Lawyers (EAL), the European Criminal Bar Association (ECBA),
the International Bar Association (IBA) and its Human Rights Institute
(IBAHRI), the International Commission of Jurists (ICJ), the International
Association of Lawyers (UIA), the “Lawyers for Lawyers” foundation
and the International Observatory of Endangered Lawyers (OIAD).3. The CDCJ approved the draft Convention for the Protection
of the Profession of Lawyer (“the draft Convention”) prepared by
the CJ-AV and adopted its draft explanatory report during its 103rd
plenary meeting held in Strasbourg from 19 to 21 November 2024,
and transmitted both texts to the Committee of Ministers. On 11
December 2024, at their 1515th meeting, the Ministers’ Deputies
agreed to transmit the draft Convention to the Parliamentary Assembly
for opinion as soon as possible. The Assembly committed itself to
give an opinion during the January 2025 part-session, so as to allow
for the adoption of the draft Convention by the Committee of Ministers
in due time. These timings imply that the draft opinion needs to
be adopted by the Committee on Legal Affairs and Human Rights (once
seized by the Bureau of the Assembly) during the part-session, and
debated in the plenary under the urgent procedure. The committee
appointed me rapporteur at its meeting in Yerevan on 9-10 December
2024, subject to the finalisation of the draft Convention and its transmission
to the Assembly.
4. Although I did not participate in the negotiations on the
draft Convention, the Secretariat of the Assembly observed their
course and briefed me about their outcome. During its above-mentioned
meeting in Yerevan, the committee held a hearing with experts to
better understand the need for this instrument and its details. I would
like to express my gratitude to Dr Christoph Henrichs (the Chair
of the CJ-AV), Mr Laurent Pettiti (President of the French Bar Delegation
in Brussels, Representative of the CCBE) and Mr Arnold Vardanyan (member
of the Armenian Chamber of Advocates) for their contribution to
our work.
5. In my explanatory memorandum, I will start by presenting some
factual information on the risks faced by lawyers in Europe (chapter
2). I will then summarise the previous work of the Assembly concerning
the protection of lawyers (chapter 3) and discuss the key features
of the draft Convention (chapter 4). I will then summarise the positions
on this draft instrument presented by lawyers’ associations (chapter
5). Finally, I will give my own assessment of the draft text (chapter
6).
2. Cases of harassment and intimidation of lawyers in Europe
6. In the autumn of 2014, Tatiana
Akimtseva and Vitaliy Moiseyev – prominent Russian lawyers – were murdered
in Moscow. They represented Sergey Zhurba,
a key witness in a high-profile case involving the Orekhovskaya
gang, a criminal organisation active in Moscow during the 1990s.
Mr Moiseyev's murder took place just hours before he was scheduled
to testify in court regarding a separate case against other leaders
of the Orekhovskaya gang. Perpetrators of these crimes were never
identified.
They represented Sergey Zhurba,
a key witness in a high-profile case involving the Orekhovskaya
gang, a criminal organisation active in Moscow during the 1990s.
Mr Moiseyev's murder took place just hours before he was scheduled
to testify in court regarding a separate case against other leaders
of the Orekhovskaya gang. Perpetrators of these crimes were never
identified.7. Three lawyers representing Alexei Navalny – Vadim Kobzev,
Igor Sergunin, and Alexei Liptser – were arrested in the Russian
Federation in October 2023 on charges of participating in an “extremist”
organisation” and, on 17 January 2025, given prison terms of up
to five and a half years. They remain imprisoned. Two other lawyers
representing Mr Navalny, Aleksandr Fedulov and Olga Mikhailova,
fled the Russian Federation following the arrests of their colleagues
and arrest warrants were issued against them in February 2024. In November
2024, a court in the Russian Federation convicted Dmitry Talantov,
a prominent lawyer, and sentenced him to seven years in prison for
speaking out on social media against the Russian war on Ukraine.
They remain imprisoned. Two other lawyers
representing Mr Navalny, Aleksandr Fedulov and Olga Mikhailova,
fled the Russian Federation following the arrests of their colleagues
and arrest warrants were issued against them in February 2024. In November
2024, a court in the Russian Federation convicted Dmitry Talantov,
a prominent lawyer, and sentenced him to seven years in prison for
speaking out on social media against the Russian war on Ukraine. 8. In February 2024, the IBAHRI and the Arrested Lawyers Initiative
released a report “A Profession on Trial: The Systematic Crackdown
Against Lawyers in Türkiye”. According to the report, following
the 2016 coup attempt, more than 1 700 lawyers have been prosecuted
on the basis of vague charges related to terrorist activity. As
of the date of that report, at least 553 lawyers had been convicted
and sentenced to imprisonment.
9. In Azerbaijan, in 2015, Alaif Hasanov, who represented the
veteran human rights defender Leyla Yunus, was disbarred after being
found guilty of defamation on account of comments concerning the
behaviour of Ms Yunus’ cellmate. The same year, lawyer Khalid Bagirov
was disbarred for criticising Azerbaijan’s judicial system during
a trial which concerned a domestic court’s failure to implement
the judgment of the European Court of Human Rights in the case of
Ilgar Mammadov, an opposition politician whose arrest was found
to be politically motivated by the Court. In 2020 the European Court
of Human Rights held that Mr Bagirov’s disbarment violated his freedom
of expression and the right to respect for his private life. Another
well-known case is that of Intigam Aliyev, a human rights lawyer,
head of the Legal Education Society and legal representative in
over 200 cases before the European Court of Human Rights, who in
April 2015 was sentenced to seven and a half years’ imprisonment
for offences including tax evasion and illegal business activity
(until the Supreme Court ordered his release in March 2016). In
2022, Azerbaijani authorities arrested Elchin Sadigov – a lawyer
known for defending many well-known journalists, bloggers, political
and religious activists. In July 2023, the Azerbaijani Bar Association
suspended his license to practise law.
The same year, lawyer Khalid Bagirov
was disbarred for criticising Azerbaijan’s judicial system during
a trial which concerned a domestic court’s failure to implement
the judgment of the European Court of Human Rights in the case of
Ilgar Mammadov, an opposition politician whose arrest was found
to be politically motivated by the Court. In 2020 the European Court
of Human Rights held that Mr Bagirov’s disbarment violated his freedom
of expression and the right to respect for his private life. Another
well-known case is that of Intigam Aliyev, a human rights lawyer,
head of the Legal Education Society and legal representative in
over 200 cases before the European Court of Human Rights, who in
April 2015 was sentenced to seven and a half years’ imprisonment
for offences including tax evasion and illegal business activity
(until the Supreme Court ordered his release in March 2016). In
2022, Azerbaijani authorities arrested Elchin Sadigov – a lawyer
known for defending many well-known journalists, bloggers, political
and religious activists. In July 2023, the Azerbaijani Bar Association
suspended his license to practise law. 10. In the United Kingdom, during the violent riots that took
place in the summer of 2024, immigration lawyers were warned to
take extra security measures or stay away from work amid far-right
threats to target their firms. The president of the Law Society
of England and Wales expressed concerns about their safety and called
the attacks on the legal profession a direct assault on democratic
values. The German Bar Association reported
similar threats against certain lawyers on account of their involvement
with the so-called NSU case, expressing
its support for the work of the Council of Europe on that matter. The
above examples show a disturbing phenomenon that transcends regional
and legal boundaries, reflecting a broader threat to the independence
of the legal profession across Europe, regardless of the national
political or legal system.
The German Bar Association reported
similar threats against certain lawyers on account of their involvement
with the so-called NSU case, expressing
its support for the work of the Council of Europe on that matter. The
above examples show a disturbing phenomenon that transcends regional
and legal boundaries, reflecting a broader threat to the independence
of the legal profession across Europe, regardless of the national
political or legal system.11. In response to the rising instances of violence, threats,
and harassment against lawyers across Europe, the Council of Bars
and Law Societies of Europe (CCBE) conducted a comprehensive survey
among its members in 2023-2024. The survey, carried out across twenty
bars in eighteen countries, saw responses from 14 559 lawyers. Its
results were summarised by Mr Pettiti during the committee hearing
in Yerevan. A significant 57% reported having experienced threats
or aggression at least once in the preceding two to three years,
with verbal aggression being the most common (64%), followed by
harassment (44%), and threatening behaviour (36.5%). Physical aggression
was less frequently reported (12%). The impact on lawyers was considerable,
affecting mental health (25%), job satisfaction (32%), work behaviour
(16.5%), job performance (12%), personal life (11%), and social
media behaviour (4%). A substantial number of lawyers (35%) have considered
leaving the profession due to these hostile behaviours, with some
indicating that they frequently contemplated this option. Furthermore,
a majority of respondents observed an increase in threatening behaviour,
harassment, and aggression over the past five years, with only a
small fraction noting any decrease.
12. Further examples of lawyers facing reprisals for their work
were included in the latest revised information note on the situation
of human rights defenders and whistleblowers in Europe.
3. Previous work of the Assembly on the protection of lawyers
13. The Assembly’s previous work
on the protection of lawyers and, more broadly, human rights defenders, shows
a determined stance of advocating for a more robust system for their
protection. In Recommendation 2085
(2016) “Strengthening the protection and role of human rights
defenders in Council of Europe member States”, the Assembly called
on the Committee of Ministers to establish a platform, similar to
that created for journalists, for the protection of human rights
defenders (including lawyers). The Assembly reiterated that call in
its Recommendation 2121
(2018) “The case for drafting a European convention on the
profession of lawyer”, demanding the creation of an early-warning
mechanism to respond to immediate threats to lawyers’ safety and independence
and to their ability to perform their professional duties effectively.
The Committee of Ministers, in its reply, decided not to set up another early-warning
mechanism to protect the various professions involved in defending
human rights.
decided not to set up another early-warning
mechanism to protect the various professions involved in defending
human rights.14. Since the adoption of the above-mentioned recommendation,
the Assembly has continued to call for a binding legal instrument.
In its Resolution 2348
(2020) “The principles and guarantees applicable to advocates”,
the Assembly noted with concern the numerous cases of violations
of lawyers’ rights, including attacks on their safety and independence,
calling for an effective and full implementation of the Recommendation
No. R(2000)21 of the Committee of Ministers to member States on
the freedom of exercise of the profession of lawyer, pending its
translation into a binding instrument. Furthermore, in its Resolution 2513 (2023) “Pegasus and similar spyware and secret State surveillance”,
the Assembly expressed its deep concern about the use of Pegasus
and similar spyware against, among other groups, lawyers. In its
related recommendation, it called on the Committee of Ministers
to adopt a recommendation to member States of the Council of Europe
on secret surveillance and human rights, and to examine the feasibility
of a Council of Europe convention on the acquisition, use, sale
and export of spyware.
4. Main features of the draft Convention
15. Chapter I of the draft Convention
contains general provisions on the purpose of the convention (Article 1),
its scope (Article 2) and use of terms (Article 3). The Convention’s
purpose is to strengthen the 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. For the purposes of the draft
Convention, “lawyer” is defined as “any natural person who is qualified
and authorised, according to national law, to practise the profession
of lawyer” (Article 3 (a)). Notably, key provisions of the draft Convention
related to professional rights of lawyers (Article 6), freedom of
expression (Article 7) and certain protective measures (Article
9.3) extend to any person who has either been refused the qualification
of lawyer or a licence to practise or has had them revoked or suspended
where the refusal, revocation or suspension violated Articles 5
(entitlement to practise) and 8 (discipline) of the Convention.
Furthermore, these provisions will also apply to any person who
is recognised by an international court or tribunal or a body established
by an international organisation (e.g., the International Criminal
Court, the European Court of Human Rights, the UN Human Rights Council)
as competent to act in proceedings before it when advising on or
acting in such proceedings. These persons, who are not licenced
lawyers, can be, for example, academics or representatives of non-governmental
organisations who represent a party before such bodies, as long
as they are recognised by the said court, tribunal or body, and
meet the relevant criteria established by this body.
16. The draft Convention will apply to the professional activities
of lawyers (defined as “any action for the preparation or provision
of advice, assistance or representation for a client or prospective
client in connection with the interpretation or application of law,
whether national, foreign or international, both in the Parties
where they are established and wherever else this may be undertaken,
including in connection with the proceedings and work of an international
court or tribunal or a body established by an international organisation”)
and of their professional associations. Certain professional rights
and protective measures will also be applicable to persons employed
or engaged by lawyers or professional associations insofar as they
contribute directly to the carrying out of their professional activities.
17. Chapter II contains the substantive provisions of the draft
Convention. These include the status of professional associations
(Article 4), basic rules concerning lawyers’ entitlement to practise
(Article 5), professional rights of lawyers (Article 6), freedom
of expression (Article 7), disciplinary proceedings (Article 8) and
protective measures (Article 9).
18. As regards professional rights of lawyers, Article 6 of the
draft Convention ensures that they can exercise fundamental rights
essential to their profession, with certain restrictions allowed
when prescribed by law and necessary in a democratic society. Lawyers
must be able to provide legal advice, assistance, and representation,
including for the purpose of defending human rights and fundamental
freedoms. They have the freedom to choose or terminate client relationships,
subject to professional obligations such as a duty to provide services
to indigent clients or adhering to rules such as the "cab-rank rule"
(affecting barristers in England and Wales, it obliges them to accept
any work in a field in which they profess themselves competent to
practise, at a court at which they normally appear, and at their
usual rates). Effective access to clients, especially those deprived
of liberty, is crucial for defence preparation and should not face
undue interference or delay. Lawyers must also have freedom of movement
within their country and abroad to meet clients, ensuring confidentiality
and professional independence. Courts and tribunals should recognise
lawyers' competence to represent clients, with access to relevant
case materials provided without undue delay unless limited by legitimate
reasons such as national security. Lawyers must be able to communicate
freely with public bodies, submit applications or motions during
proceedings, and participate effectively in all stages of legal processes.
They are entitled to inform the public about their services under
freedom of expression protections but must avoid misleading advertising.
Article 6.2 provides that lawyers shall not incur civil or criminal
liability for statements made in good faith and diligently in the
conduct of proceedings. A contrario,
lawyers who intentionally mislead the authorities or engage in abusive
behaviour will not be able to rely on this immunity. Confidentiality
in lawyer-client communications is paramount and may only be subjected
to limitations under exceptional circumstances with adequate judicial
oversight. Restrictions on these rights must pursue legitimate aims,
be proportionate, and balance competing interests in line with democratic
principles. Article 6 emphasises that lawyers should not face adverse
consequences for being identified with their clients or their clients’
cause, as such identification has led to harassment and intimidation
in the past.
19. Article 7 of the draft Convention emphasises that lawyers
and their professional associations have the right to express themselves
on issues related to their profession, the law, its application,
human rights, and legal reforms, reinforcing freedoms of expression
and assembly as guaranteed by Articles 10 and 11 of the European
Convention on Human Rights. Lawyers must be able to inform the public
about cases and make critical comments, as this can highlight broader
concerns such as systemic issues in the justice system or human
rights violations. Article 8 of the draft Convention establishes
requirements for disciplinary proceedings against lawyers, including
grounds, procedures, and sanctions, to prevent misuse and protect
lawyers' professional activities. The grounds for disciplinary proceedings
must be prescribed by law and consistent with the European Convention
on Human Rights. The body responsible for hearing disciplinary charges
and determining disciplinary sanctions must be independent and impartial,
with options including a disciplinary committee, an independent
authority, or a court. Lawyers must have the ability to challenge
the disciplinary sanction before an independent and impartial court
or tribunal established by law. Sanctions imposed should adhere
to the principles of legality, non-discrimination, and proportionality,
with prohibitions on the right to practise reserved for the most
serious breaches of professional standards.
20. Protective measures laid down in Article 9 include the right
of lawyers to have access to legal representation when deprived
of liberty, timely notification of professional associations in
such cases, and the presence of representatives during searches
or seizures involving their premises or data. Lawyers must also be
informed of these rights, and any restrictions on them must be lawful
and necessary in a democratic society for preventing, investigating
and prosecuting crime or for protecting the rights of others. Article
9 also covers inspections or measures taken to supervise the profession,
ensuring they comply with human rights standards and include safeguards
against misuse. Professional associations are granted rights to
access detained lawyers, receive information on attacks against
lawyers linked to their professional duties, and attend hearings. Parties
are further obliged to protect lawyers from threats, harassment,
or intimidation by public or private actors and ensure effective
investigations into such abuses where there is reason to believe
that these may amount to criminal offences. Additionally, Parties
are prohibited from adopting measures or endorsing practices that
would undermine the independence or self-governance of professional
associations, reinforcing their essential role in protecting the
legal profession’s integrity.
21. Chapter III establishes a monitoring mechanism. Article 10
establishes the Group of Experts on the Protection of the Profession
of Lawyer (GRAVO) which shall monitor the implementation of the
Convention by the Parties. GRAVO will receive information on the
implementation of the Convention from the Party concerned and may
receive submissions from civil society organisations, professional
associations, national institutions for the protection of human
rights, as well as consider information available from other Council
of Europe bodies and/or other international organisations (Article
12). Country visits may be organised only when the information gained
is insufficient and there are no other feasible ways of reliably
gaining the information (Article 12.3). An urgent procedure is foreseen
when reliable information indicates a situation where problems require immediate
attention to prevent or limit the scale or number of serious violations
of the Convention (Article 13). The Assembly is listed among the
recipients of reports adopted by GRAVO concerning the implementation
of the Convention (Article 13.3 and 15).
22. Chapter IV regulates the relationship of the draft Convention
with other international instruments and Chapter V contains final
clauses, which resemble those found in other Council of Europe conventions; however,
there are no provisions related to reservations, enabling States
to formulate them when signing, ratifying, accepting, approving
or acceding to the convention.
23. Under Article 18, after the entry into force of the Convention,
the Committee of Ministers will be empowered to invite any non-member
State of the Council of Europe to accede to the Convention.
5. Positions voiced by stakeholders
24. The CCBE has been a strong
supporter of the initiative to draft the Convention and was an observer
of the works of the CJ-AV. It has consistently advocated for a binding
legal instrument to protect lawyers, viewing it as crucial for the
administration of justice and the protection of fundamental rights.
During the committee hearing in Yerevan, Mr Pettiti emphasised the
rising number of instances of violence, threats, and harassment against
lawyers across Europe, which prompted the CCBE to conduct a comprehensive
survey (mentioned above). Its results underscored the serious risks
faced by lawyers in various fields and national contexts, reinforcing
the call for robust protective measures. The CCBE has thus fully
endorsed the draft Convention, supporting its adoption.
25. The International Association of Young Lawyers (AIJA) assessed
the draft Convention as a vital step forward in safeguarding young
lawyers from undue State intervention, enabling them to practise
their profession freely. AIJA stated that “the proposed framework
not only meets but potentially sets a new standard for the protection
of legal practitioners”.
6. Assessment, conclusions and proposal for amendment
26. The draft Council of Europe
Convention for the Protection of the Profession of Lawyer should
be regarded as a tremendous achievement of the CJ-AV and the Council
of Europe. Once adopted, it will become the first-ever binding international
instrument on this matter and reinforce the Council of Europe’s
status as a leading international organisation for the protection
of human rights, democracy and the rule of law. Its global reach
follows up on a commitment included in the Reykjavik Declaration
of May 2023, in which Heads of State and Government of the Council
of Europe committed to strengthening the role of the Organisation
in the evolving European multilateral architecture and in global
governance by enhancing its external dimension.
27. In my view, the biggest advantage of the draft Convention
is its pragmatic approach to threats and challenges faced by lawyers.
Unlike Recommendation No. R(2000)21 of the Committee of Ministers,
the draft Convention addresses a wider range of issues by providing
for: freedom to choose clients, prohibition of identifying lawyers
with their clients or their clients’ cause, ability to take part
in the public discussion on matters concerning the promotion and
protection of human rights and the rule of law, civil and criminal
immunity for statements made in good faith in pleadings or professional
appearances, communication and advertising, and the duty of authorities
to adequately safeguard threatened lawyers. I am very pleased to
note that the CJ-AV thoroughly implemented the Assembly’s Recommendation 2121 (2018), despite the obvious difficulties stemming from the
differences between legal systems and ways the legal profession
is organised in member States of the Council of Europe. I take comfort
in the fact that prominent associations of lawyers positively assess
the draft Convention and endorse its adoption.
28. Nevertheless, I regret that the draft Convention contains
no direct reference to the use of secret surveillance, including
spyware, against lawyers. While Article 6.3 (b) provides for the
confidentiality of lawyer-client communications, I believe that
specific guarantees associated with the use of modern electronic surveillance
tools would be called for, especially when considering the Assembly’s
findings contained in Resolution
2513 (2023). I hope that this issue will be addressed in a future
Council of Europe convention on the acquisition, use, sale and export
of spyware, the feasibility of which shall be examined by the Committee of
Ministers in due course.
29. Another matter I wish to address is the early-warning mechanism
to respond to immediate threats to lawyers’ safety and independence
and to their ability to perform their professional duties effectively.
Although the Assembly recommended in the past that such a mechanism
be based on the model of the Platform to promote the protection
of journalism and safety of journalists, I am satisfied that the
draft Convention equips GRAVO with the tools necessary to achieve
similar ends. I am particularly pleased with the establishment of an
urgent procedure (Article 13) and look forward to co-operating with
this monitoring body.
30. Finally, I note that the CJ-AV, as indicated in its report
of the 8th meeting (13-15 May 2024) (document CJ-AV(2024)08), decided that “none of the provisions of the convention
should be subject to reservation”. It appears that in result of
this decision, a draft provision concerning reservations was removed.
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, what seems
to contradict the intention of its authors, who wished to prohibit
reservations. Therefore, I consider it imperative to propose an amendment,
whose wording reflects that contained in the Model Final Clauses
for Conventions, Additional Protocols and Amending Protocols concluded
within the Council of Europe, which the Ministers’ Deputies adopted
at their 1291st meeting in July 2017. I firmly believe that only
a full implementation of the Convention can lead to the strengthening
of the protection of the profession of lawyer. In the absence of
a provision prohibiting reservations, the general customary rule
would apply (prohibiting only those reservations which would be
incompatible with the object and purpose of the treaty). Such an
extremely high threshold could prove tempting for some States and
lead them to formulating reservations that would limit the overall
impact of this otherwise excellent instrument.