STRASBOURG: The OIAD attended as observer to the 3rd meeting of the Committee of Experts for the drafting of a Convention on the Protection of Lawyers

The 3rd meeting of the Committee of experts on the Protection of Lawyers (CJ-AV) in charge of drafting an international legal instrument on the protection of lawyers was held in Strasbourg from 8 to 10 November 2022. The Observatory participated as an observer, represented by Laurence Roques, who summarised the content of the meeting as follows:

“Massimo Audisio, who represented the OIAD at the first two meetings, recalled that these meetings had focused on the binding nature of the instrument, with a sub-question concerning the procedure for monitoring the binding nature of it. Even though a large majority of States were in favour of the binding nature of the instrument, given the lack of unanimity (Turkey opposed it), this question was postponed until later.

This meeting was dedicated to study the substantive articles of the convention. It was agreed to postpone consideration of the preamble until the end, once all the articles of the convention have been agreed, which is more coherent as it will be easier to write it once a consensus has been reached on the content of the convention.

Discussions were focused on both definitional and translation issues between the English version (the original version, as it is the language of the writer) and the French version.

•  The question of the definition of a lawyer, which covers very different categories according to the legal systems, should it be defined in the text of the convention or, on the contrary, referred to national legislation as proposed by the CCBE. The discussion remains open. What about lawyers who have been disbarred or prevented from joining a bar for political reasons? The risk with the second option is to make the convention too restrictive and lose effectiveness, whereas with the first definition there is a risk that states will refuse to sign the convention. 
• Who can benefit from the protection of the convention. Should it be extended to lawyers’ assistants who act on behalf of the latter? This question also relates to the more general question of extending protection to representatives of human rights defenders, which, it was pointed out, had in principle been decided to exclude them from the Convention on lawyers.
• The definition of “professional association”, to which the lawyer must belong in order to be covered by the convention, has also been debated, since in some countries it is not compulsory to be registered with a bar association in order to practise as a lawyer.
• The definition of the client, to which must be added the client who has given the lawyer a mandate and the client who consults the lawyer, and with regard to the potential client, see the legal vacuum with regard to the lawyer appointed to the legal aid of an incapable client or a minor.  

There are also translation difficulties between the original version and the French version in order to find a consensus that reconciles the legal traditions of Anglo-Saxon origin and continental law.

In particular, we heard from two representatives of the ILIA association who spoke of the importance of such an instrument and the need to pay particular attention to human rights lawyers, who are the prime targets of threats.

Although the discussions are interesting and fruitful, the task is proving to be more difficult than it seems, given the major differences between legal systems, particularly the Anglo-Saxon and continental legal systems. The original timetable may not be kept (adoption of the instrument at the beginning of 2024) and the working method is being modified with dedicated sub-groups. It was also agreed that everyone should be able to make comments before the next meetings.

 Next meeting 1 to 3 March 2023. A new version of the convention following this meeting will be circulated by 12 December 2022, for comment by mid-January 2023.”

Read the Minutes of the meeting in English.