Report on the Basic Principles on the Role of Lawyers in the United Nations

The European Court of Human Rights has jurisdiction to assess alleged violations of the European Convention on Human Rights (ECHR).

Article 6 ECHR protects everyone’s right to a fair trial, which includes several rights, such as the right to access and communicate with a lawyer of their choice.

The right to privacy (Article 8) and the right to freedom of expression (Article 10) have also been used by the ECHR to protect the principle of independence of the legal profession.

The ECtHR noted that the “mere presence” of a lawyer is not sufficient to give effect to the rights guaranteed by Article 6 ECHR.

For example, the passive presence of a lawyer in the courtroom would not be considered sufficient under Article 6 ECHR.

Non-interference and independence of the legal profession

In Morice against Francea lawyer had been sanctioned criminally and civilly for defamation because of his criticism of two judges published in an article published in a major newspaper.

On the one hand, this article repeated the terms of a letter sent by the lawyer to a minister requesting an administrative inquiry into the behavior of the judges and, on the other hand, comments made to the journalist who authored the article in question. .

The ECtHR concluded that there had been a violation of the lawyer’s right to freedom of expression under Article 10 ECHR.

The European Court of Human Rights has held that “a lawyer must be able to draw the public’s attention to possible shortcomings in the judicial system; the judiciary can benefit from constructive criticism”.

The ECtHR also distinguished the remarks of the judges from those of the lawyers, specifying that “the speech of the judges, unlike that of the lawyers, is received as the expression of an objective assessment which engages not only the one who expresses, but also, through it, the whole of justice. Lawyers, on the other hand, only speak on their own behalf and on behalf of their clients.

Likewise, in Nikula vs Finlandthe applicant, a lawyer in a criminal case, argued that a negligent defamation conviction obtained against her by the prosecutor in the case constituted an unjustified interference with her right to freedom of expression.

The defense attorney had criticized the conduct of the prosecutor in this case.

The ECtHR upheld the applicant’s arguments, establishing that her criticism had been formulated before the court and that it was limited to the function of prosecutor and not of a personal nature.

Furthermore, as defense counsel, the applicant had a duty to defend her client’s interests in a robust manner, subject to judicial supervision.

Therefore, it should be primarily for a lawyer to assess the relevance and usefulness of a defense argument without being influenced by the potential “chilling effect” of even a relatively light criminal sanction or an obligation to pay compensation for the damage suffered or the costs incurred.

However, the European Court of Human Rights has not said that while lawyers have the right to comment in public on the administration of justice, their criticism must not exceed certain limits.

The European Court of Human Rights has also noted that there is greater protection for statements by which a defendant criticizes a prosecutor, as opposed to verbal attacks on the judge or the court itself.

There are several cases involving Azerbaijan, in which the European Court of Human Rights found that disciplinary measures taken against lawyers for statements made in their capacity as lawyers violated the ECHR.

In Aliyev vs Azerbaijanthe applicants had been refused admission to the Azerbaijani Bar Association (ABA) because of comments they had made criticizing the situation of the legal profession in the country.

The European Court of Human Rights has declared that the freedom of expression of lawyers is linked to the independence of the legal profession, which is crucial for the effective functioning of a fair administration of justice.

The ECtHR also stressed the importance for the professional association of lawyers to act independently and with respect for its professional colleagues, which had not been the case in this case.

In Bagirov vs Azerbaijanthe ECtHR considered that the removal of the applicant for comments he had made while legally representing an opposition politician constituted a violation of the right to privacy and freedom of expression, in accordance with the Articles 8 and 10 ECHR.

The ECtHR noted that the proper functioning of the courts would not be possible without relations based on consideration and mutual respect between the different actors of the judicial system, at the forefront of which are judges and lawyers.

The European Court of Human Rights has also held that the status of lawyers gives them a central position in the administration of justice as intermediaries between the public and the courts.

Because of their particular role, they should also enjoy exclusive rights – among them usually some latitude regarding the arguments used in court.

The European Court of Human Rights further noted that a clear distinction should be made between criticism and insult, the latter not warranting protection.

In Hajibeyli and Aliyev against Azerbaijanthe applicant was a lawyer whose home and office were searched because of unfounded accusations against him.

The European Court of Human Rights has held that the persecution and harassment of members of the legal profession strikes at the very heart of the Convention system.

Therefore, searches of lawyers’ premises should be subject to particularly strict control.

The European Court of Human Rights has also attached particular importance to the particular role of human rights defenders in the promotion and defense of human rights, including in close cooperation with the Council of Europe.

Access to a lawyer

In Salduz vs Turkeythe accused had been taken into custody pending questioning.

The ECtHR found that neither the legal assistance subsequently provided nor the adversarial nature of the ensuing procedure could remedy the defects that occurred during police custody.

The Grand Chamber of the European Court of Human Rights has held that access to a lawyer should be granted from the first questioning of a suspect by the police, unless there are compelling reasons to restrict such access.

In Aras against Turkey (n°2)the accused was questioned by the police after his arrest without having access to a lawyer.

When presented to the investigating judge, the latter allowed the defendant’s lawyer to enter the courtroom, but he was not allowed to speak or advise his client. .

The ECtHR considered that the “simple presence” of the lawyer was not sufficient to give effect to the applicant’s right to defend himself or through a lawyer of his choice, under the 6(3)(c).

The accused should have had access to a lawyer from the first interrogation.

Attorney-Client Confidentiality

In Lanz v Austriathe accused’s contacts with his lawyer during pre-trial detention were monitored because of the risk of the accused influencing witnesses or removing documents not yet seized.

The ECtHR found a violation of the right to a fair trial under article 6 ECHR.

She considered that the right to communicate with a defense lawyer out of earshot of a third party is one of the fundamental requirements of a fair trial in a democratic society.

The European Court of Human Rights has found that if a lawyer is unable to speak with a client, the lawyer’s assistance loses much of its usefulness.

Therefore, surveillance was a serious intervention and it needed very serious reasons to justify it.

In Altay – Turkey (n°2)the prison administration considered that the behavior of the defendant’s lawyer, consisting in sending the applicant books and periodicals which were not related to the defense, was incompatible with his duties as a lawyer and, consequently , ordered the presence of a civil servant during the consultations between the applicant and her lawyer.

However, the European Court of Human Rights has ruled that interception of correspondence solely because it did not concern the rights of the defense would run counter to the right to respect for private life under the Article 8 of the ECHR.

The European Court of Human Rights has noted that the privilege of the lawyer-client relationship and the obligation of national authorities to guarantee the confidentiality of communications between a detainee and the lawyer he has chosen are part of the international standards recognized.

In addition, the ECtHR ruled that there was no reason to distinguish the different categories of correspondence with lawyers, which, whatever their subject, concern matters of a private and confidential nature.

The ECtHR considered that this principle applied with all the more reason to oral communication, face to face, with a lawyer.

In Sakhnoskiv vs Russiathe Grand Chamber of the ECtHR found a violation of the right to a fair trial under Article 6 ECHR.

The European Court of Human Rights noted that the accused was only able to communicate with his lawyer by video link for 15 minutes immediately before his appeal hearing, and it was questionable whether the communication by video link was private enough.

The ECtHR concluded that the provisions made by the Supreme Court were insufficient and did not provide effective legal assistance to the accused during the second appeal procedure.

In Sommer v Germanythe applicant (a lawyer) had defended a client in 2009.

After the proceedings were completed, the client’s fiancée paid the lawyer’s fees by transferring money from her private bank account to her business account.

In 2010 and 2011, the Public Prosecutor’s Office investigated several individuals suspected of having committed commercial fraud.

As part of this investigation, the public prosecutor contacted the applicant’s bank, requesting a list of all transactions concerning the lawyer’s bank account since January 2009.

The ECtHR considered that the collection, storage and making available of the lawyer’s professional banking transactions constituted an interference with his right to respect for professional secrecy and his private life.

The interference was compounded by the fact that excerpts of the information were placed on file and made available to others.

Moreover, the inspection of the lawyer’s bank account had not been ordered by a judicial authority and no specific procedural safeguards were applied to protect the lawyer’s professional secrecy.

The ECtHR further noted that it had previously recognized the importance of specific procedural guarantees when it comes to protecting the confidentiality of exchanges between lawyer and client.