Report: Protection of lawyers against undue interference in the free and independent exercise of the legal profession

The UN Special Rapporteur presented his report on the Protection of lawyers against undue interference in the free and independent exercise of the legal profession to the 50th Human Rights Council that is to be held in Geneva between 13 June–8 July 2022.

The report is based on among other things 69 inputs submitted by state parties, bar associations and human rights NGOs in response to the questionnaire circulated by the UN Special Rapporteur.  The Arrested Lawyers Initiative is among those 69 responders. (To see our submission on the webpage of the UN)

PATTERNS

According to the report, there are several patterns of interference in the exercise of the legal profession. “Those who defend human rights in cases related to national security or corruption are in a particularly sensitive situation. Another issue is the arbitrary identification of the lawyer with his client.” is said in the report.

Lawyers who defend human rights, Cases related to national security, Cases of corruption, Association of lawyers with their clients are rising patterns of undue interference in the free and independent exercise of the legal profession.

“According to a human rights organization, in Turkey, the Public Prosecution Service routinely investigates and opens cases against lawyers under the Counter-Terrorism Act (No. 3713) for activities undertaken in the discharge of their professional duties and have associated them with the alleged crimes of their clients. Various international human rights organizations have denounced the abusive use of the Counter-Terrorism Act to persecute persons practising law. Between 2016 and 2022, more than 1,600 lawyers were prosecuted and 615 were placed in pretrial detention. A total of 474 lawyers have been sentenced to 2,966 years of imprisonment on the grounds of membership in a “terrorist organization” (Criminal Code, art. 314).

Pretrial detention, arrest and searches of lawyers’ homes are considered to be human rights violations when they are based on mere supposition and there is no evidence to justify such measures.” is said in the report by giving reference to our submission to the Special Rapporteur and our report titled The Crackdown that is also shared on the UN’s website.

The report also gives reference to Third party intervention made by Italian Federation for Human Rights to a pending European Court of Human Rights Case (Application no. 14894/20, Gültekin Sağlam against Turkey) which the Arrested Lawyers Initiative contributed.

Means of interference

The report presents that Means of interference are as follows:

  1. Interference in bar and professional associations of lawyers

The increasing interference of States in the organization, administration and functioning of lawyers’ organizations and associations is also of particular concern to the Special Rapporteur. …

In Turkey, 78 investigations and prosecution proceedings are reported to have been launched against at least 68 members of the Diyarbakir Bar Association.  Two former presidents of the Bar Association, Fethi Gümüs and Mehmet Emin Aktar, were sentenced to 7 years and 6 months and 6 years and 3 months in prison, respectively, under counterterrorism legislation. In 2020, Act No. 7249 entered into force, modifying the electoral system of the chambers of the bar and further restricting the independence of bar associations and the legal profession.61 This law was adopted following the release by the Ankara Bar Association of a press statement criticizing a statement made by the Director General of Religious Affairs containing implicit anti-LGBTQI+ hate speech, and in spite of protests by the heads of Turkish bar associations.

2. Physical and psychological abuse of lawyers and their families

International lawyers’ associations have reported policies of harassment of the legal profession in some countries. In 2021, the Council of Bars and Law Societies of Europe identified instances of physical and psychological abuse in 38 countries around the world, including Belarus, China, Egypt, the Islamic Republic of Iran, the Philippines, and Turkey.. Together with the other thematic mandate holders of the Human Rights Council, the Special Rapporteur transmitted a communication to the Government of Turkey expressing concern about the detention of 48 lawyers, 7 trainee lawyers, 4 dismissed judges and 1 law graduate in September 2020 in Ankara.

3. Defamation in the media

It is common for lawyers who defend and represent persons under investigation for or accused of security offences within the framework of counter-terrorism legislation or in relation to high profile political cases to face stigmatization or defamation in the media and on social networks. The pressure caused by such actions severely limits the free exercise of the legal profession by lawyers and paralegals. A high proportion of the professionals consulted reported the proliferation of smear campaigns on social networks against lawyers and paralegals involved in cases that are sensitive for persons in political power. As a result of such actions, the media and the general public may misinterpret, or fail to understand, the purpose of legal defence and the duty of legal professionals, which is to represent a client; this does not imply that the lawyer approves of the client’s actions or is guilty of a crime for defending that client.

4.Disciplinary procedures

In places such as Azerbaijan,  the Russian Federation,  India, Japan, Kazakhstan, Kenya, Maldives and the United Republic of Tanzania, an increasing number of disciplinary proceedings against lawyers handling cases involving human rights or politically sensitive topics have been brought on the basis of complaints submitted by the authorities. In the Russian Federation, the labelling of a lawyer as a “foreign agent” means that the authorities may file a motion to initiate disciplinary proceedings seeking his or her disbarment, as in the aforementioned case of the lawyer of a well-known political opponent. Lawyers in countries such as Belarus and Turkey have highlighted the fact that some groups of lawyers are not granted a licence to practise because they are associated with certain activities, such as the defence of human rights, the fight against corruption or the defence of minorities. This constitutes an attack on the free exercise of the legal profession and is a disguised sanction.

The decision not to grant professional licences to lawyers associated with certain issues endangers future generations of lawyers interested in defending human rights and fundamental freedoms. In 2021, the Qualification Commission for Legal Practice in Belarus revoked the licences of five lawyers, allegedly for providing legal services to opposition leaders and peaceful protesters.

Disciplinary measures are a powerful weapon in the hands of Governments, allowing them to interfere with the professional activities of lawyers, in particular those handling cases brought against the State or representing causes or clients that may make them unpopular. The establishment of an independent system for the consideration of disciplinary proceedings for alleged violations of the rules of professional ethics constitutes an important factor in the independence of the legal profession.

5; Use of the judicial system and the police

Between 2020 and 2021, the Special Rapporteur received allegations of the use of coercion, detention, harassment and other practices against lawyers in connection with the lawyers’ legitimate performance of their professional duties in countries such as Belarus, Cabo Verde, the Russian Federation, the Philippines, Haiti, Kuwait, Pakistan, Romania, the United Republic of Tanzania and Zimbabwe.

6. Professional secrecy, searches and seizures

The Special Rapporteur has received information on the intervention of public authorities in the free exercise of the legal profession through searches of lawyers’ offices and the interception of client-attorney communications for later use at trial.

 

CONCLUSIONS

The present report reaches following conclusions:

  • In many countries, the free and independent exercise of the legal profession is guaranteed by law. However, this duty to guarantee is often not adequately fulfilled. To ensure full compliance with the obligations set out in the Basic Principles on the Role of Lawyers and in domestic legislation, it is essential to establish effective institutional and legal guarantees of judicial independence, which is indispensable,
  • Members of the legal profession may be attacked or intimidated by a variety of actors, including State bodies and institutions, organized criminal groups and, in certain circumstances, lawyers’ associations themselves,
  • In some countries, under the pretext of maintaining national security or combating terrorism, corruption or the pandemic, the authorities have restricted the exercise of the legal profession. These restrictions are especially harsh when space for civil society protest and participation is also limited. The treatment of persons who promote accountability and transparency or who work in the field of human rights is often among the most concerning,
  • Attacks on groups of lawyers defending certain causes have increased considerably in many countries in recent times. Legal practitioners whose work touches on topics such as the exercise of freedom of expression or political rights, the defence of human rights, the environment, women’s rights, ethnic minorities or the rights of the LGBTQI+ community are the targets of threats and attacks, even attempts on their lives,
  • Legal initiatives aimed at limiting the free exercise of the legal and paralegal professions are now commonplace in many regions of the world. Such intervention may even take the form of interference by the executive branch in the work of the decision making bodies of the legal profession, or may be achieved through the adoption of legislation,
  • When members of the legal profession are threatened or attacked, timely and adequate investigations are not always carried out, investigative measures are sometimes delayed, and the opportunity to gather the evidence needed to prosecute and punish those responsible is missed,
  • Cases of the surveillance, harassment, public lynching, stigmatization, criminalization and co-option of, and threats and attacks against, certain groups of lawyers require a more consistent and effective response from States,
  • In some countries, disbarment has been used as a form of repression by the authorities against lawyers who defend human rights cases or members of the political opposition or protesters and lawyers who advocate essential principles of the rule of law and human rights,
  • Such arbitrary disbarments not only undermine the rule of law in general, but also violate the human rights of the disbarred lawyers and the fundamental principles that safeguard the independence of the judiciary and the legal profession.


Categories: Reports, Unjust / Wrongful Convictions

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