Questionnaire for civil society and bar associations
Taking into consideration the guarantees for the functioning of lawyers, contained in principles 16-22 of the Basic Principles on the Role of Lawyers, please describe the constitutional, legal, administrative and policy measures adopted in your country to enable lawyers to exercise their professional activities in favour of their clients in a free and independent manner
What entities and/or mechanisms are in place to prevent and/or punish interferences with the free and independent exercise of the legal profession? Please briefly describe them and specify whether they are independent bodies or if they belong to the administrative structure of the State.
Please indicate if there are any legislative, administrative, or institutional barriers that have hindered the work of lawyers and the exercise of the legal profession in your country, and describe them.
Please describe the role of the national bar association(s) in protecting lawyers and the free exercise of the legal profession. Is the bar association de jure and de facto independent from the State?
New guidelines from the official professional association say some lawyers have been ‘hyping up cases’ and trying to influence public opinion
Practising and former lawyers warn that the measures will prevent them from representing their clients properly and curb their freedom of speech
China’s official lawyers’ association has introduced new guidelines that ban lawyers from “hyping up cases” online or in the media in the latest move to tighten control over the legal profession.
The ethical guidelines issued by the All-China Lawyers Association this week came into force with immediate effect, initially on a provisional basis.
The Communist Party has been extending its reach into the legal system with tighter regulations and a string of disbarments since 2015’s “709 crackdown”, which saw about 300 rights lawyers, legal assistants and activists rounded up around the country.
A briefing issued by the association said a “small number of lawyers” had “commented inappropriately and disclosed details to hype up their cases”, adding that the guidelines were designed to strengthen professional ethics and enforce discipline by stopping lawyers from releasing details of their cases through the internet, the media or clients’ families.
“Some publicise their cases on the internet to enable ‘trial by public opinion’ while some breach clients’ privacy, insult and defame case handlers, vilify their opponents and mislead public opinion in an attempt to influence the case proceedings,” it continued.
Lawyers are also not allowed to organise petitions and press conferences, publish open letters or engage in public advocacy works with the purpose of fanning public opinion to influence court decisions.
The guidelines say they cannot release documents, video or photographs without court approval.
They will also apply to cases in the post-trial stage, including appeals and retrials.
The latest research report by the ZLHR highlights the current situation of lawyers in Zimbabwe. The report outlines the political situation in Zimbabwe, as well the impact of the COVID-19 pandemic. Additionally the report demonstrates how lawyers in Zimbabwe have been barred from representing their clients, have become subjects to arbitrary arrests, and have even been attacked for practicing their profession. Read on for more on this.
Lawyers play a vital role in upholding the rule of law and the protection of human rights, including the rights to effective remedy, due process of law, fair trial and the right of freedom from torture and other cruel, inhuman or degrading treatment or punishment. Their work is indispensable for public confidence in the administration of justice, and to ensure effective justice for all. All persons are entitled to call upon the assistance of a lawyer of their choice to provide legal services. It is the responsibility of lawyers to protect and establish the rights of citizens from whatever manner in which those rights may be threatened and defend them in all stages of legal proceedings. To fulfil their professional duties effectively, lawyers should be able to practice law independently in accordance with recognized laws, standards and ethics. They should be free from improper interferences, any fear of reprisals, or unreasonable restrictions.
Attacks against lawyers
The beginning of 2020 saw an increase in the number of arrests of Zimbabwean lawyers, and in the restrictions placed on lawyers in their freedoms to carry out their profession. The onset of the COVID-19 pandemic, and government enforced restrictions, resulted in an increase in these numbers. Alec Muchadehama, a human rights lawyer from Zimbabwe, describes the situation of lawyers under the lockdown as follows:
“ [W]e had insurmountable difficulties moving to police stations and the Courts. We would be frisked at the check points. We would not be allowed to pass despite identifying ourselves as lawyers. Whilst we were prevented from reaching our clients, they were being over detained and being held incommunicado. The case of Joana Mamombe, Cecilia Chimbiri and Netsai Marova makes sad reading. They were kidnapped by suspected State security agents. On 5 May 2020 they temporarily disappeared and were discovered 36 hours later, severely tortured. They are now facing allegations of breaking the COVID-19 regulations and spreading falsehoods prejudicial to the State.”
L4L and ZLHR call upon the Zimbabwean authorities to guarantee in all circumstances that lawyers in Zimbabwe are able to carry out their legitimate professional rights and duties without fear of reprisals and free of all restrictions, including judicial harassment. In its task of promoting and ensuring the proper role of lawyers, the Government of Zimbabwe should respect, and take account of, the Basic Principles within the framework of its national legislation and practice. Adherence to the Basic Principles is considered a fundamental pre-condition to fulfilling the requirement that all persons have effective access to legal assistance and representation. Furthermore, as a member of the African Union and the UN, and as a party to the African Charter on Human and Peoples’ Rights and the International Covenant on Civil and Political Rights, Zimbabwe has legal obligations to adopt measures that effectively ensure rights to liberty, freedom from arbitrary detention, freedom of expression, and fair trial.
On March 10, the Turkey Tribunal organised a webinar to discuss the state of judicial independence and access to justice in Turkey. The webinar was like a summit of worldwide renown figures in the area of judiciary. Among them were Diego Garcia Sayan, U.N. Special Rapporteur for Independence of Judges and Lawyers, Jose Igreja Matos, president of European Association of Judges, and Filipe Marques, president of European Judges for Democracy and Liberty (MEDEL).
The webinar was based on a new report on “Judicial Independence and Access to Justice in Turkey.” The report shares facts, especially actions by public authorities, which have occurred in Turkey since 2010 as they relate to the role of the Turkish judiciary, with a special focus on the dramatic decline in the independence of the judiciary after the failed coup attempt of July 2016.
Leaving the content of the report and what was said by these most prominent and competent voices to the next article, I want to share my views as a witness in this webinar. This witness statement is a humble attempt to shake the EU’s and Council of Europe’s comfort in ignorance towards the catastrophe unfolding in Turkey.
In this testimony, I attempt to share the feeling of waking up to a Kafkaesque dystopia. This is exactly what I mean by saying “I went to bed a judge, and woke up a terrorist”. Indeed, this was exactly what happened to me and thousands of other colleagues in the wake of the failed putsch.
Since there are incredibly sad stories I witnessed among my fellow colleagues, I preferred to share some of those stories instead of mine. Because I managed to buy the freedom of myself and my children by paying $ 40,000 to smugglers, and have the luxury to speak up.
This luxury, in my view, brings along the responsibility to voice the illegalities and persecutions to silence each and every dissident in Turkey, not only among my persecuted colleagues, but also among all segments of society, including Kurds, Gülenists, democrats, leftists, LGBT community members, religious and ethnic minorities, etc.
However, to comply with the context of the report and the webinar, I had to focus on remembering the judges and lawyers who died in prison, on their way to flee to become a refugee, or on hunger strikes after 2016.
Among the judges who were found dead in their solitary confinement cells were Teoman Gökçe and Seyfettin Yiğit. Maybe, we will never be able to learn how they really died. Mehmet Tosun was another judge who died in a hospital after being released from a long-lasting imprisonment.
My husband Chang Weiping (常玮平) is a Chinese human rights lawyer, who has represented clients in cases related to religious freedom, forced demolition and discrimination (HIV, gender and LGBT issues). In January 2020, he was placed under Residential Surveillance at a Designated Location (RSDL) by Shaanxi police for 10 days for attending the Xiamen Meeting, [an informal gathering of some twenty activists and lawyers in early December 2019]. He was subjected to severe torture before being released on bail. On October 22, 2020, he was again detained in RSDL for ‘allegedly inciting subversion of state power’.
The Spring Festival of 2021 is fast approaching. Chang Weiping has been held in RSDL for 112 days this second time around. The Shaanxi police has been investigating his case for one year and 20 days.
I think it is necessary to make a record of everything he and his family have been through in the past year. Although our lives are as insignificant as ants, we will NOT stop exposing the truth.
I. Disaster strikes after a meeting
It was around December 27, 2019, when Weiping called me out of the blue. He said anxiously that some of his friends had been arrested for attending a meeting in Xiamen and that he, who also attended the meeting, had to go into hiding. He said he had sent me all his bank cards. He told me to take care of myself and our family and hung up after saying “love you.” After about ten days of hiding, he called me saying that it seemed to be safe and since he had not done anything, perhaps he should come out from hiding. I told him to wait a little longer. Little did I know that just two days later, on January 12, 2020, he would be also taken into custody. The nightmare began.
On the morning of January 14, 2020, someone from Gaoxin Branch of Baoji Public Security Bureau (陕西省宝鸡市公安局高新分局) called me and informed me that Chang Weiping had been placed under RSDL on suspicion of “inciting subversion of state power.”
A UN expert today said she feared three human rights defenders serving 10-year prison sentences in the United Arab Emirates are being mistreated in conditions that may amount to torture and urged authorities to release them.
“Issuing long-term prison sentences to human rights defenders, in connection to their human rights work, is a practice that cannot continue, and is an issue I will be prioritising during my mandate” said Mary Lawlor, UN Special Rapporteur on the situation of human rights defenders.
“Not only have Mohamed Al-Roken, Ahmed Mansoor and Nasser Bin Ghaith been criminalised and imprisoned for their non-violent and legitimate calls for respect for human rights in the UAE, they have been subjected to ill-treatment in prison,” Lawlor said. “Reports I have received indicate that the conditions and treatment that these human rights defenders are subjected to, such as prolonged solitary confinement, are in violation of human rights standards and may constitute torture”.
Lawlor said Mohamed Al-Roken, imprisoned since 2012 on charges of “plotting against the government”, is subjected to intermittent periods in solitary confinement, allegedly without justification or explanation. In 2013, the Working Group on Arbitrary Detention (WGAD) found this detention to be arbitrary and requested his immediate release.
A coalition of international legal advocates sent a joint letter Saturday to Professor Mary Lawlor, the UN Special Rapporteur on Human Rights Defenders, condemning the growing trend of government officials intimidating and endangering the legal representatives of politically controversial clients. They also called for greater protections to be granted to advocates, the clients they represent, and for the UN to address the diminishing safety of legal advocates worldwide.
The UK based advocacy organization CAGE submitted the joint letter on behalf of 45 signatories. The list of signatories comprises numerous well-known legal professionals including Stanley Cohen, Aamer Anwar, Michael Finucane, Fahad Ansari, David Hugh Southey, David Gottlieb, and Gareth Pierce. The letter cites many examples of these deteriorating protections for human rights advocates and NGOs that represent individuals accused of politically motivated violence. The group also asserts that these advocates are “routinely harassed and vilified by the press, threatened by the public, and intimidated, incarcerated, and assassinated by the state and its agents.” Despite suffering from systemic abuse, the group claims that these advocates have no legal recourse because the governments themselves are often complicit in the abuse.
While many autocratic regimes are well-known for their persecution of human rights advocates and legal representatives, the group underscores that despite chronic underreporting on the subject, there is a growing prevalence of these state abuses in “developed” nations. Solicitor Fahad Ansari elaborated on this point by saying that “lawyers in many parts of the developed world fare much better than their counterparts in the global South” when advocates “hail from minority communities and share the religion and/or ethnicity of their clients, the animosity towards the client is projected by extension to their lawyer.” The letter also provides many prominent examples of such politically motivated animus by government officials and the sometimes deadly repercussions this normalization of degrading legal representatives can have for the advocates themselves.
UIA-IROL has been following closely the situation of lawyers and judges in Afghanistan and remains extremely concerned by the number of attacks on lawyers and judges. The most recent incidents include the murder of two Supreme Court Judges who were killed on their way to work. Supreme Court Judges Kadria Yasini and Zakia Herawi were assassinated by unidentified assailants who ambushed them and opened fire on their vehicles. Kabul’s police force also confirmed that the drivers of the two murdered judges and a third judge were wounded in the attack.
We note that Taliban spokesperson Zabihullah Mujahid denied the group’s involvement in the assassinations. However Afghan President Ashraf Ghani condemned the Taliban and other such groups in the wake of Sunday’s assassinations, stressing that the ongoing violence against women and scholars, is an “attack on our honor and dignity,” and can “jeopardize the efforts for lasting peace.”
The judges’ assassinations are among the most recent in a series of attacks against influential figures in Afghanistan, including the targeted killings of human rights-activists, a military prosecutor and journalists.
UIA-IROL recalls that in matters of administration of justice, the treaties protecting fundamental rights and freedoms could not be given full effect without the adoption of principles guaranteeing the independence of judges, prosecutors and lawyers.
A Spanish criminal court has taken the decision to prosecute Gonzalo Boye, the lawyer of former Catalan presidents Carles Puigdemont and Quim Torra, on suspicion that he is connected with a drug trafficking case.
National Audience judge María Tardón, a former Madrid city councillor for Spain’s Popular Party, considers that the lawyer committed an alleged crime of money laundering, involving the funds that came from a criminal organization dedicated to drug trafficking and led by José Ramón Prado Burgaño, also known as Sito Miñanco, for whom Boye acted as a lawyer. He is also being prosecuted for forgery.
Boye has repeatedly denied having any connection with the case, stating that one of the lawyers who has been prosecuted, Manuel Puente Saavedra, “falsely” incriminated him in a statement that allowed Puente Saavedra to be released in 2019.
Spanish “lawfare” and “the rattling of gowns”
Catalan president in exile, Carles Puigdemont, came out in defence of Boye, and attributed the decision of the National Audienc court to “lawfare”, the practice of using legal systems to achieve a partisan goal. “Everyone knows perfectly well what all this is about. A shame, as a result of a certain sector of the judiciary sinking into in the mud of lawfare. A classic case. All my support, friend Gonzalo Boye,” said Puigdemont. “Thank you, President, we continue” the lawyer replied.
This list has been compiled by the European Human Rights Advocacy Centre (EHRAC) on the basis of publicly available reports from international human rights organisations and information from partner lawyers in Azerbaijan.
In the years following the 2014 crackdown on civil society in Azerbaijan and the criminal prosecution of NGO and human rights defenders, human rights lawyers who took up these and other ‘politically sensitive’ cases have been subjected to severe retaliation by the authorities, which has sometimes resulted in the suspension of their licences and even disbarment.
Disciplinary proceedings have been brought against human rights lawyers in response to their legitimate exercise of the right to freedom of expression: for publicising human rights violations perpetrated against their clients in detention, or for disclosing instances of the abusive administration of justice in their clients’ cases. As a result, over a dozen Azerbaijani lawyers have been deprived of the opportunity to practise their profession, and over two dozen have been targeted by the Azerbaijani authorities since 2005.
In January 2020, in its first case relating to the disbarment of a lawyer in Azerbaijan, the European Court of Human Rights (European Court) found a violation of the right to a private life (Article 8 of the European Convention on Human Rights) in the case of Elchin Namazov, who was disbarred in the absence of adequate procedural safeguards in disciplinary proceedings brought against him. The Court found that the domestic courts had failed to assess the proportionality of the sanction.
Khalid Bagirov is another prominent human rights lawyer who was first suspended in 2011 after he made comments about the suspicious death of his client in police custody. He was later permanently disbarred in 2015 for criticising Azerbaijan’s judicial system during a trial which concerned a domestic court’s failure to implement the European Court’s judgment in the case of Ilgar Mammadov, an opposition politician whose arrest was found to be politically motivated.
In June 2020, the European Court ruled that Azerbaijan’s suspension and disbarment of Bagirov was in breach of his freedom of expression (Article 10 of ECHR) and right to a private life. The Court ordered the Azerbaijani Government to ensure the “maximum possible reparation” for Khalid Bagirov, “and [that] they should put the applicant, as far as possible, in the position in which he had been before his disbarment.”