Council of Europe recommendation on the freedom to practice as a lawyer

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Forseti seated in court (1881) by Carl Emil Doepler

The Council of Europe's recommendation on the freedom to practice the legal profession calls on the Council of Europe member states to ensure that lawyers can practice their profession freely and independently. How it is implemented in national law is left to the Member States.

Legal validity

English barrister in court

The recommendations of the Council of Europe on the free exercise of the legal profession are neither international nor national law , but non-binding recommendations. This form is also known as soft law and represents a less strict self-commitment, although this does not necessarily mean ineffectiveness.

Neither the national courts nor the European Court of Human Rights are bound by the Council of Europe's recommendation on the freedom to practice as a lawyer .

Goals and basics

The aim is to guarantee the freedom of practicing the profession of lawyer in the member states and consequently the protection of those seeking justice (parties) in proceedings. As lawyers, who often have to take a contrary legal position, lawyers are particularly exposed and cannot fully represent their clients if they are threatened with personal or economic disadvantages or sanctions when practicing their profession. The Council of Europe's recommendation on the free exercise of the legal profession thus has a similar function to judicial independence and freedom of instruction .

The special protection of lawyers concerning is also found in the UN Basic Principles on the Role of Lawyers ( Engl. : Basic Principles on the Role of Lawyers) of 7 September 1990 and is anchored more or less pronounced in national laws and rules.

The state has to ensure that lawyers are able to perform all professional tasks without intimidation, hindrance, harassment or improper influence for the benefit of their clients. It must be ensured that lawyers can freely consult with the client both in their own country and abroad and it must be ensured that lawyers are not subject to prosecution for actions that are in accordance with recognized professional duties, rules of conduct or duties of honor or suffer negative administrative, economic or other sanctions or are even threatened with them.

Jurisprudence

In NIKUI.A v. FINLAND (2002), the European Court of Human Rights referred directly to Article 20 of the UN Basic Principles on the role of lawyers as well as the Council of Europe recommendation on the free exercise of the legal profession (Principle I.4 and III.4).

Future development

For better protection, the Council of Europe is planning to create a European convention on the profession of lawyer . On October 13, 2016, 22 members of the Parliamentary Assembly of the Council of Europe recommended a resolution to the Committee of Ministers to start work on a convention. The Committee on Legal Affairs and Human Rights of the Council of Europe has on March 7, 2017 Sabien Lahaye-Battheu , lawyer and parliamentarian in Belgium , rapporteur for a draft European Convention on the profession of lawyer.

By changing the previously non-binding recommendation on the free practice of the legal profession in a future binding convention , the basic principles of the free practice of lawyers are to be established and lawyers are effectively protected in their professional practice, even if domestic legal protection options fail. This is especially true in cases of threats to the rule of law, e.g. B. lawyers are active as human rights defenders .

Web links

Individual evidence

  1. ↑ Recommendation No. R (2000) 21 of the Council of Europe on the freedom of exercise of the legal profession of October 25, 2000 ( English : Recommendation № R (2000) 21 of the Committee of Ministers to member states on the freedom of exercise of the profession of lawyer ).
  2. ↑ Julia Richter: Soft Law as a bridge builder between economy and health protection? Archive of International Law , Volume 52, Issue 4 (December 2014), pp. 545–565.
  3. ↑ Basic Principles on the Role of Lawyers , UN website.
  4. ↑ See e.g. B .: § 3 of the Federal Lawyers' Act (BRAO) "The lawyer is the independent advisor and representative in all legal matters" or §§ 48, 49 and 49a BRAO. Section 1 (3) of the Professional Code of Practice for Lawyers (BORA) states that the lawyer's duties are: "... to protect his clients from loss of rights, to provide legal support, to avoid conflicts and to resolve disputes, to protect them from wrong decisions by the courts and authorities and to secure them against unconstitutional interference and state transgression . "
  5. ↑ See also: Article 16 of the Basic Principles on the Role of Lawyers.
  6. ↑ REPORTS OF JUDGMENTS AND DECISIONS RECUEIL DES ARRÊTS ET DÉCISIONS 2002-11 , pp. 297 ff.
  7. ↑ Lawyers shall enjoy civil and penal immunity for relevant statements made in good faith in written or oral pleadings or in their professional appearances before a court, tribunal or other legal or administrative authority .
  8. ^ Lawyers should not suffer or be threatened with any sanctions or pressure when acting in accordance with their professional standards .
  9. ↑ Lawyers should respect the judiciary and carry out their duties towards the court in a manner consistent with domestic legal and other rules and professional standards. Any abstention by lawyers from their professional activities should avoid damage to the interests of client or others who require their services .
  10. ↑ The case for drafting a European Convention on the profession of lawyer .
  11. ↑ See: List of Members of the Belgian Chamber of Deputies (52nd electoral term) .
  12. ↑ See also: CCBE press release .