The Council of Bars & Law Societies of Europe (CCBE) published its Manifesto for the 2019 EU Elections. In this Manifesto CCBE voices its concerns in regard of Rule of Law and fundamental rights in the European Union.
Independence of all justice actors
One of the themes is the independence of all justice actors, as a cornerstone of rule of law:
The last few years also showed an increasing and worrying interference by governments and authorities in the selection and appointment of judges. The objective is clearly to affect the ability of the judiciary to annul and sanction government actions and decisions. The European institutions have rightly addressed such interferences as an infringement of the Rule of Law.
More and more frequently, lawyers and legal practitioners are finding themselves under pressure and urged to be loyal to the governing party, sometimes suffering intimidation. For example, in some countries special disciplinary bodies have been created for judges and lawyers, composed only of representatives of the governing party. There have been occurrences of lawyers being denied authorisation to meet with clients. Lawyers are publicly “identified” with the clients they represent and, as a result, are being harassed, insulted and threatened, and sometimes prosecuted and imprisoned. Put under such pressure and being harassed, lawyers are sometimes forced to abandon their client or drop the case.
However, in other countries the interference of authorities in lawyers’ activities is subtler and more insidious. Often using the justification of national security, lawyers have been put under surveillance. Exchanges between clients and their lawyers have been intercepted and processed. In some countries, authorities seek to adapt the professional organisation of the legal profession and dilute its independence.
Indeed, an independent legal profession, represented by a strong and respected Bar, offers more certainty and safety for citizens. Citizens must be able to rely on lawyers to exercise their duties in a free and unrestricted way.
The European Commission and Parliament are therefore invited, when assessing the Rule of Law in future or current Member States or when considering the introduction of new legislative initiatives, to ensure that neither the independent exercise of the legal profession, nor the role of the Bar to ensure this, are endangered or negatively affected. The lack of a clear definition of ‘national security’ allows for arbitrariness and abuses of fundamental rights and the Rule of Law by executive powers and intelligence communities in the EU.
Conflicting mandatory disclosure and professional non-disclosure obligations
CCBE finds that in recent years lawyers have been subjected to mandatory disclosure obligations, for example in legislation in the area of fighting money laundering, terrorist financing and aggressive tax planning.
These obligations are fundamentally incompatible with the lawyers’ general and absolute mandatory non-disclosure obligation towards their clients. This professional obligation of lawyers is founded upon fundamental individual rights, such as the right to privacy and the right to a fair trial and fair administration of justice, inside and outside of courts. The right of citizens to remain silent and to not incriminate themselves would become completely useless if the person in which the citizen confides is obliged to speak. This professional non-disclosure obligation is recognised throughout European Member States in constitutions, criminal codes, legislation, etc. Several international instruments recognise this principle, such as the UN Basic Principles on the Role of Lawyers, the Council of Europe Recommendation on the freedom of exercise of the profession of lawyer, etc. The right of the client to the lawyers’ professional secrecy obligation is generally accepted to be part of the foundation of the Rechtsstaat, or a cornerstone of the Rule of Law.
The introduction of the recent legislative mandatory disclosure obligations considerably dilutes this fundamental right of citizens and may lead to a further erosion of the respect for individuals’ fundamental rights and for the Rule of Law. Lawyers face conflicting professional obligations: when reporting suspicious transactions (Anti- Money Laundering), the lawyer cannot legally reveal this to the client and must continue to represent the client, whereas according to professional ethics the lawyer should refuse to give further assistance. The intervention of the Bar in such difficult situations offers tremendous ethical and moral support to the lawyer.
Recommendation (2000)21 on the freedom of exercise of the profession of lawyer, adopted by the Committee of Ministers of the Council of Europe on 25 October 2000, highlights that “the role of Bar associations or other professional lawyers’ associations in protecting their members and in defending their independence against any improper restrictions or infringements should be respected.”
The suitability, appropriateness and proportionality of mandatory disclosure obligations, which heavily affect citizen’s fundamental rights, have never been adequately established, evaluated and are rarely monitored. This goes against the principles of good governance.
The CCBE supports the fight against money laundering and tax evasion and shares the common goal of seeking the best means to fight these issues. However, solutions can be developed which are appropriate, proportional and more respectful of fundamental rights. The CCBE invites the Commission, Parliament and Member States to proactively examine how legitimate regulatory objectives can be achieved, while appropriately respecting individuals’ rights and freedoms.
Other themes in the Manifesto are:
- safeguarding Rule of Law in all member states;
- access to justice, including legal aid;
- artificial intelligence in justice;
- judicial training;
- legal assistance as part of emergency humanitarian aid;
More information: Manifesto (pdf)