By The Rwandan Lawyer
In order for legal assistance to be effective, it must be carried out independently. This is recognized in the preface to the UN Basic Principles on the Role of Lawyers (UN Basic Principles), which states that “adequate protection of the human rights and fundamental freedoms to which all persons are entitled, be they economic, social and cultural, or civil and political, requires that all persons have effective access to legal services provided by an independent legal profession”.(1) To this end, international law establishes certain safeguards aimed at ensuring the independence of individual lawyers as well as of the legal profession as a whole.
Indeed, Lawyers are, with judges and prosecutors, one of the pillars upon which human rights and the rule of law rest. Lawyers play an essential role in protecting human rights and in guaranteeing that the right to a fair trial is respected by providing accused persons with a proper defence in court. In protecting human rights, lawyers play a crucial role in protecting the right against arbitrary detentions by challenging arrests, for example through presenting habeas corpus. Lawyers also advise and represent victims of human rights violations and their relatives in criminal proceedings against alleged perpetrators of such violations and in proceedings aimed at obtaining reparation. Furthermore, lawyers are in the best position to challenge before courts national legislation that undermines basic principles of human rights and the rule of law.(2) The right to be represented by a lawyer, even when the person has no financial means to procure one, constitutes an integral part of the right to a fair trial as recognized by international law. Individuals who are charged with a crime must at all times be represented by a lawyer, who will guarantee that his right to receive a fair trial by an independent and impartial tribunal is respected throughout the proceedings. Lawyers are the ones who will challenge the court’s independence and impartiality and who will ensure that the defendants’ rights are respected.(3)
Specifically, in its ruling of 02 April 2021, the UN International Residual Mechanism for Criminal Tribunals (UNIRCT) rejected the application submitted by Me ALTIT to leave the case file of KABUGA Felicien whereby he raised the issue of the interferences of the family members of his client which where seemingly jeopardizing his profession as far as confidentiality is concerned. The client had accepted his withdrawal and replaced him by Peter Robinson. The court ordered him to not give up the casefile explaining that his application was not groundless as the KABUGA family is not part of the proceedings and advising him to go on with the defence of the dossier.
The issue hereby deserving to be raised is whether this judicial ruling does not infringe the rights of this lawyer especially his independence internationally recognized and the rights of defence of his client insofar the free choice of his lawyer is concerned.
I.THE INDEPENDENCE OF LAWYERS
When examining a new Law on the Bar in Azerbaijan, the Committee concluded that the said law “may compromise lawyers’ free and independent exercise of their functions,” and recommended the Government to “ensure that the criteria for access to and the conditions of membership in the Bar do not compromise the independence of lawyers”.(4) In the case of Libya, the Committee noted that serious doubts arose as to “[…] the liberty of advocates to exercise their profession freely, without being in the employment of the State, and to provide legal aid services,” and recommended that “measures be taken to ensure full compliance with article 14 of the Covenant as well as with […] the Basic Principles on the Role of Lawyers”.(5)
International law further recognizes the need for lawyers to have access to all the relevant information to a case in which they may be involved. Thus, States must “ensure lawyers access to appropriate information, files and documents in their possession or control in sufficient time to enable lawyers to provide effective legal assistance to their clients”.(6) Another important provision is related to the secrecy of communications between lawyers and their clients. In order for lawyers to effectively represent their clients, the competent authorities must respect this secrecy, which is the cornerstone of the lawyer-client relationship. To this end, the UN Basic Principles provide that “Governments shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential”.(7)
A possible obstacle to be faced by lawyers is the lack of recognition as such by official bodies, be they courts or others. Except in cases in which the lawyer has been disbarred or disqualified following the appropriate procedures, such bodies must acknowledge the lawyer’s qualifications. The UN Basic Principles provide for this recognition when they state that “No court or administrative authority before whom the right to counsel is recognized shall refuse to recognize the right of a lawyer to appear before it for his or her client unless that lawyer has been disqualified in accordance with national law and practice and in conformity with these principles”. According to Principle 18 of the UN Basic Principles, “Lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions”. This rule is extremely important due to the tendency, in certain countries, to assimilate clients’ causes to their lawyers. n In one report to the UN Commission on Human Rights, the Special Rapporteur on the independence of judges and lawyers noted his concern at “the increased number of complaints concerning Governments’ identification of lawyers with their clients’ causes. Lawyers representing accused persons in politically sensitive cases are often subjected to such accusations”.The Special Rapporteur concluded that “Identifying lawyers with their clients’ causes, unless there is evidence to that effect, could be construed as intimidating and harassing the lawyers concerned”. According to international law, the Special Rapporteur said, “where there is evidence of lawyers identifying with their clients’ causes, it is incumbent on the Government to refer the complaints to the appropriate disciplinary body of the legal profession”.
2) Legal framework of independence of lawyers
According to the Montreal Universal Declaration on the Independence of Justice, There shall be established in each jurisdiction one or more independent and self-governing associations of lawyers recognized in law, whose council or other executive body shall be freely elected by all the members without interference of any kind by any other body or person. This shall be without prejudice to their right to form or join, in addition, other professional associations of lawyers and jurists. 3.26 In order to enjoy the right of audience before the courts, all lawyers shall be members of the appropriate Bar Association. Function of the Bar Association 3.27 The functions of a Bar Association in ensuring the independence of the legal profession shall be inter alia: a) to promote and uphold the cause of justice, without fear or favour; b) to maintain the honour, dignity, integrity, competence, ethics, standards of conduct and discipline of the profession; c) to defend the role of lawyers in .society and preserve the independence of the profession; d) to protect and defend the dignity and independence of the judiciary; e) to promote the free and equal access of the public to the system of justice, including the provision of legal aid: and advice; f) to promote the right of everyone to a fair and public hearing before a competent, independent and impartial tribunal, and in accordance with proper procedures in all matters; g) to promote and support law reform, and to comment upon and promote public discussion on the substance, interpretation and application of existing and proposed legislation; h) to promote a high standard of legal education as a prerequisite for entry into the profession; i) to ensure that there is free access to the profession for all persons having the requisite professional competence and good character, without discrimination of any kind, and to give assistance to new entrants into the profession; j) to promote the welfare of members of the profession and render assistance to a member of his family in appropriate cases; Q to affiliate with, and participate in, the activities of international organizations of lawyers. 3.28 Where a person involved in litigation wishes to engage a lawyer from another country to act with a local lawyer, the Bar Association shall cooperate in assisting the foreign lawyer to obtain the necessary right of audience. 3.29 To enable the Bar Association to fulfill its function of preserving the independence of lawyers, it shall be informed immediately of the reason and legal basis for the arrest or detention of any lawyer; and for the same purpose the association shall have prior notice for: t) any search of his person or property, ii) any seizure of documents in his possessions, and iii) any decision to .take or calling into question the integrity of a lawyer. In such cases, the Bar Association shall be entitled to be represented by its president or nominee, to follow the proceedings, and in particular to ensure that- professional secrecy is safeguarded
II.THE RIGHT TO CHOOSE OF HIS OWN LAWYER
The European Court of Justice decided a case relating to the free choice of lawyers.The Court overrode a condition in an insurance policy and decided that a European directive granting free choice of lawyers had to be respected regardless of the insurance condition. Mr Eschig, an Austrian citizen, had taken out legal expenses insurance with UNIQA. Together with several thousand other investors, some of whom had taken out the same UNIQA insurance, he subsequently invested money with investment undertakings which became insolvent. He instructed a law firm to represent him in several proceedings, including bankruptcy proceedings against the investment companies, criminal proceedings against their executive organs, and proceedings against the Republic of Austria for failures in the supervision of the financial markets. He sought an assurance from UNIQA that it would cover legal expenses for action already taken by lawyers chosen by him and for action to be taken by those lawyers in the future. UNIQA refused, relying on the provisions of an article in the conditions of the insurance that permitted them to select the lawyer themselves in the case of a mass claim. Mr Eschig brought an action for a declaration, first, that UNIQA was liable to bear the expenses incurred as a result of his lawyers’ activity in the past and future proceedings and, secondly, that the insurance condition was invalid and so did not form part of the legal expenses insurance policy.
The problem for UNIQA was that Article 3 of Directive 87/344 (the legal expenses insurance directive) expressly gives ‘the insured person the right to entrust the defence of his interests, from the moment that he has the right to claim from his insurer under the policy, to a lawyer of his choice or, to the extent that national law so permits, any other appropriately qualified person’. The court went through the various interpretations of the directive, and came to the conclusion that UNIQA was not permitted to use the insurance condition on which it relied, and so Mr Eschig could appoint a lawyer of his choice.
The Council of Bars and Law Societies of Europe would have liked to intervene in the case. But, because we did not do so at national level – we could not, since we did not know anything about it until it was referred to the European Court of Justice, and in any case Austrian law has strict rules on third-party interventions – we were not allowed to intervene at European level, under the rules of the court. We find ourselves frequently frustrated in this way by cases that affect lawyers, which come to our attention only once they go beyond the national level. Nevertheless, the outcome in this particular case is what we wanted.
On the other hand, RIAD, the International Association of Legal Expenses Insurance, has expressed its disappointment at the outcome. They believe that it is against the interests and needs of users of legal expenses insurance: ‘… it makes no sense to prohibit measures that are clearly in the interest of individuals who all have a common cause of action and for whom the use of a single legal team has the effect of improving the management of their legal action, to the benefit of both, claimant, defendant and society in general’. As legal expenses insurers in Austria prepare to meet the court’s requirements, a spokesperson said that: ‘In many cases, such insurance coverage has only become possible as it has allowed us to avoid unnecessary duplication of legal expenses … the question is to what extent does the judgment forces us to limit our coverage and how we will strike the right balance between efficient claims management and consumer interests.’
We should not feel too sorry for RIAD. They are the same organization that, last year, held a conference around the theme that ‘high regulation is not necessary to achieve sufficient access to law and that a different kind of regulation which gives consumers more choice could have positive effects’ – without inviting any bar representative to speak (despite our asking them) and with only one practicing lawyer on a panel. This case can be seen as the revenge of the lawyers.
In the case of KABUGA Felician, the accused decided to remove me ALTIT from his legal assistance because the latter has refused to share information on his health conditions to his family members. There should then be wondered whether even if lawyers are paid by the court the accused has not the right to choose his own or reject the advocate appointed if he deems he is not duly assisting him or legally protecting his interests. In our humble opinion, KABUGA Felicien has to appeal against the court decision evidencing reasons pushing him to disavow the lawyer ALTIT as the court seems forcibly intending to maintain his contract while both the client and the council agreed to end up their relationships.
The ruling of theUN International Residual Mechanism for Criminal Tribunals (UNIRCT) is not visibly violating rights of defence of KABUGA Felicien and this does not predict a happy end from this dossier which seemingly lacks evidence on the real involvement of the accused in the genocide of 1994.There is hereby recommended to the court to duly let the accused freely choose his lawyers especially as he is enough rich to individually pay them.
United Nations Basic Principles on the Role of Lawyers., Principle 16.
United Nations Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990;
UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, articles 1, 9, 11;
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, Principle 5;
Declaration on the Protection of All Persons from Enforced Disappearance, article 13;
United Nations Rules for the Protection of Juveniles Deprived of their Liberty, Rules 18, 60 and 78;
United Nations Standard Minimum Rules for the Administration of Juvenile Justice (”The Beijing Rules”), Rules 7.1 and 15.1;
Standard Minimum Rules for the Treatment of Prisoners, Rule 93;
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, articles 17 and 18.
UN Basic Principles on the Role of Lawyers, Principle 1;
European Convention on Human Rights, article 6; American Convention on Human Rights, article 8
OSCE ODIHR and OSCE Office in Baku, Report from the Trial Monitoring Project in Azerbaijan 2003-2004, Annex 6, Warsaw and Baku, February 4, 2005.
UN Basic Principles, Principle 21. T
Report of the Special Rapporteur on the independence of judges and lawyers, UN document E/CN.4/1998/39, para. 179
UN Basic Principles on the Role of Lawyers, doc. cit., Principle 12.
Explanatory Memorandum on Recommendation No. R (2000) 21 of the Committee of Ministers to Member States on the freedom of exercise of the profession of lawyer, para. 1
Report of the Special Rapporteur on the independence of judges and lawyers, UN document E/CN.4/1995/39, para. 72
Case C-199/08, Eschig
Jonathan Goldsmith, The right to choose your own lawyer, https://www.lawgazette.co.uk/analysis
1 United Nations Basic Principles on the Role of Lawyers., Principle 16. Other relevant instruments on the role of lawyers are: the Council of Europe’s Recommendation No. R (2000) 21 of the Committee of Ministers to Member States on the freedom of exercise of the profession of lawyer and the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Principle I.
2 See, for example, the principles 4 and 12 of the United Nations Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990; the UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, articles 1, 9, 11; Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, Principle 5; Declaration on the Protection of All Persons from Enforced Disappearance, article 13; Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, Principle 6; Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Principles 3 and 4; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Principles 11, 12, 15, 17, 18, 23, 25, 32 and 33; United Nations Rules for the Protection of Juveniles Deprived of their Liberty, Rules 18, 60 and 78; United Nations Standard Minimum Rules for the Administration of Juvenile Justice (”The Beijing Rules”), Rules 7.1 and 15.1; Standard Minimum Rules for the Treatment of Prisoners, Rule 93; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, articles 17 and 18.
3 See, for example, the UN Basic Principles on the Role of Lawyers, doc. cit., Principle 1; International Covenant on Civil and Political Rights, article 14, para. 3 (d); African Charter on Human and Peoples’ Rights, article 7, para. 1 (c); European Convention on Human Rights, article 6; American Convention on Human Rights, article 8
4 OSCE ODIHR and OSCE Office in Baku, Report from the Trial Monitoring Project in Azerbaijan 2003-2004, Annex 6, Warsaw and Baku, February 4, 2005.
5 UN Basic Principles, Principle 21. T
6 Report of the Special Rapporteur on the independence of judges and lawyers, UN document E/CN.4/1998/39, para. 179
8 UN Basic Principles on the Role of Lawyers, doc. cit., Principle 12.
10 Explanatory Memorandum on Recommendation No. R (2000) 21 of the Committee of Ministers to Member States on the freedom of exercise of the profession of lawyer, para. 1
11 Report of the Special Rapporteur on the independence of judges and lawyers, UN document E/CN.4/1995/39, para. 72
12 Case C-199/08, Eschig
13 Jonathan Goldsmith,The right to choose your own lawyer, https://www.lawgazette.co.uk/analysis