Principle I – General principles on the freedom of exercise of the profession of lawyer

21. A fair and equitable system of administration of justice and the effective protection of human rights and fundamental freedoms, depend both on the independence and impartiality of the judiciary (see the 1994 Recommendation) and on the independence of lawyers. The independence of the judiciary and of lawyers are essential elements of any system of justice.

22. Indeed, an adequate protection of human rights and fundamental freedoms, economic, social and cultural, as well as civil and political rights to which all persons are entitled, requires that all persons have effective access to legal services provided by an independent legal profession (principle I.1).

23. Moreover, the Recommendation provides, in its Principle I.2, that the authorisation to practise as a lawyer or to accede to this profession, should be taken by an independent body. This includes admission to a professional body or to a register of lawyers or applications for a licence to practice as a lawyer. The independent body referred to in this Principle may be a professional body or a body composed of members of the judiciary, members of the general public and other members, in addition to a number of the representatives of the legal profession. The Recommendation also provides that the decisions concerning the authorisation to practice as a lawyer or to accede to this profession, whether or not they are taken by an independent body, should be subject to review by an independent and impartial judicial authority. However, if the initial decision is taken by a court, there is no need to provide for another judicial control (principle of the "incorporated control").

24. It should be noted that Principle I.2 does not exclude other forms by which persons are admitted to practice the legal profession, as long as the criteria for admission are fair and objective and the body that administers them does so in a fair and objective way(see also Principle V below).

25. The Recommendation further underlines that lawyers should enjoy the same freedom of association, belief, opinion and expression as other persons in society. In particular, it indicates that lawyers should have the right to participate in public discussions on questions relating to the law and the administration of justice with no legal restrictions other than those applicable to other persons (principle I.3), and the right to join or form freely and without interference, local or national professional organisations. This principle should not prevent professional bodies from restricting the right of their members to speak publicly about matters on which they have been engaged to advise. In addition, lawyers should not be subject to any restriction by reason of their beliefs or membership of a lawful association. Indeed, lawyers, as one of the fundamental actors of any judicial system, should not remain insensible to important developments which might occur in the economic and social life and should play an active role in any legislative proposal which might lead to the improvement of the judicial system.(see also paragraph 6 above).The freedoms referred to in this Principle are already contained in Articles 9, 10 and 11 of the ECHR (freedom of thought, conscience, region, expression, assembly and association). This Principle is included in the Recommendation for pedagogical and didactical purposes.

26. To enable the legal profession effectively to perform its proper role in the defence of the rights of individuals, lawyers should be able to counsel and represent their clients in accordance with the internal law of the State concerned, as well as with established professional standards, without any restriction, influences, pressures, threats or undue interference from any quarter (Principle I.4).

27. The Recommendation then deals with the question of the client-lawyer relationship (Principles I.5 and I.6). As regards persons deprived of their liberty (Principle I.5), the Recommendation indicates that the right of access of lawyers to their clientsshould be balanced with the need to guarantee the proper administration of justice and protect public order. Indeed, in certain cases it may be appropriate to limit the access of lawyers to their clients in order to protect, for instance, ongoing criminal investigations or the security of prisons.

28. Paragraph 6 of Principle I recognises the importance of the confidentiality of the client-lawyer relationship and the need for States to take all necessary measures to ensure the respect of this confidentiality[8][8]. Only exceptions which are compatible with the Rule of Law are allowed.

29. The need for confidentiality has been recognised on many occasions (eg. by the United Nations « Governments shall recognise and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential »[9][9] and other international fora).

30. In addition, the European Court of Human Rights has developed an extensive case-law on the question of the lawyer-client relationship and its confidentiality, in connection with Article 8 of the European Convention on Human Rights concerning the right to respect for private and family life (eg. the confidentiality of the correspondence of a prisoner with a lawyer[10][10]).

31. Certain exceptions to this principle of the confidentiality of the lawyer-client relationship are allowed providing they are compatible with the Rule of Law. The wording of the second sentence of paragraph 6 of Principle I follows the wording of the judgment in the Kopp case where the European Court of Human Rights held that, in order for State to interfere with the right protected by Article 8, “the law in questions [has to be] “compatible with the Rule of Law””.

32. Therefore, a balance has to be struck between the need to protect the confidentiality of the lawyer-client relationship and the need to protect society by means of measures which are compatible with the Rule of Law.

33. Furthermore, the Recommendation refers to the need for lawyers, in order to carry out properly their tasks, to have access to all relevant files (Principle I.7) and indicates that no files in the record should be available to one party, but not to the other (principle of equality of arms during judicial proceedings).

34. Finally, in its Principle I.8, the Recommendation recalls the principle of equality among lawyers themselves and requires States to provide for the necessary measures to ensure that lawyers acting in the same case be treated equally. This provision is without prejudice

from national legislation concerning the situation in which more than one lawyer defend the same client. Indeed, this provision refers to equality of lawyers of different parties. Moreover it should be noted that articles 6,8,10,11 and 14 of the ECHR are relevant in this context.

Date: 2015-12-24; view: 781