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MINISTERS’ DEPUTIES |
CM Documents |
CM(۲۰۲۴)۱۹۱-add1final |
۱۲ March ۲۰۲۵ |
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۱۵۲۲nd meeting, ۱۱ and ۱۲ March ۲۰۲۵ ۱۰ Legal questions ۱۰.۱ European Committee on Legal Co-operation (CDCJ) Council of Europe Convention for the Protection of the Profession of Lawyer |
Preamble
The member States of the Council of Europe and the other signatories to this Convention,
Considering that the aim of the Council of Europe is to achieve greater unity between its members;
Recalling the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 5, 1950) and its Protocols and the case law of the European Court of Human Rights;
Taking into account the 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-7 September 1990);
Taking into account Recommendation Rec(2000)21 of the Committee of Ministers to member States on the freedom of exercise of the profession of lawyer;
Taking into account Resolution 44/9 on the independence and impartiality of the judiciary, jurors and assessors, and the independence of lawyers, adopted by the United Nations Human Rights Council on 16 July ۲۰۲۰;
Underlining the fundamental role that lawyers and their professional associations play in upholding the rule of law, securing access to justice and ensuring the protection of human rights and fundamental freedoms;
Noting with grave concern that lawyers are increasingly being subjected to attacks, threats, harassment and intimidation on account of their professional activities as well as to improper hindrance or interference when performing their legitimate professional activities;
Condemning all such attacks, threats, harassment, intimidation and improper hindrance or interference;
Considering the different manner in which the profession of lawyer may be organised in member States of the Council of Europe and the other signatories to this Convention;
Considering the need to strengthen the international legal framework to ensure the freedom to practise the profession of lawyer,
Have agreed as follows:
Chapter I – Purpose, scope and use of terms
Article 1 – Purpose of the Convention
۱. The purpose of this Convention is to strengthen the protection of the profession of lawyer and the right to practise this profession with independence and without discrimination, improper hindrance or interference, or being subjected to attacks, threats, harassment or intimidation.
۲. This Convention establishes a specific mechanism in order to ensure an effective implementation of its provisions by the Parties.
Article 2 – Scope
۱. This Convention applies to the professional activities of lawyers and of their professional associations.
۲. The provisions in Articles 5 to 9 of this Convention are, insofar as relevant to their specific situation, applicable to those lawyers providing, under their home title, legal advice, assistance or representation in a Party and who are:
b.doing so pursuant to the law of that Party, European Union law or international agreements.
۳. The provisions in Articles 6 (professional rights of lawyers), 7 (freedom of expression) and 9 (protective measures), paragraph ۴, of this Convention are also applicable to:
۴. The provisions in Articles 6, paragraph 3, sub-paragraphs b and c, and 9, paragraph 4, of this Convention are also applicable to persons employed or engaged by lawyers to assist them insofar as they contribute directly to the carrying out of the professional activities of those lawyers.
۵. The provisions in Article 9, paragraph 4, of this Convention are also applicable to persons employed or engaged to assist professional associations insofar as the carrying out by them of the professional activities of those associations is concerned.
Article 3 – Use of terms
For the purposes of this Convention:
b. “client” shall mean any natural or legal person who is advised, assisted or represented by a lawyer;
c. “prospective client” shall mean any natural or legal person who seeks, whether directly or indirectly, to be advised, assisted or represented by the lawyer concerned;
d. “professional association” shall mean a representative body to which some or all lawyers belong, whether directly or indirectly, or are enrolled and which has some responsibility for organising or regulating their profession under national law;
e. “professional activities of lawyers” shall mean any action for the preparation or provision of advice, assistance or representation for a client or prospective client in connection with the interpretation or application of law, whether national, foreign or international, both in the Parties where they are established and wherever else this may be undertaken, including in connection with the proceedings and work of an international court or tribunal or a body established by an international organisation;
f. “professional activities of professional associations” shall mean any action covered by Article ۴, paragraph 2, of this Convention;
g. “public authorities” shall mean:
h. “prescribed by law” and “necessary in a democratic society” shall be understood within the meaning of the Convention for the Protection of Human Rights and Fundamental Freedoms as interpreted by the European Court of Human Rights.
Chapter II – Substantive provisions
Article 4 – Professional associations
۱. Parties shall ensure that the national legal and regulatory framework guarantees that professional associations are independent, self-governing bodies. Any election of their executive bodies shall take place in accordance with the applicable rules and without external interference.
۲. Parties shall ensure that professional associations can:
۳. Parties shall ensure that professional associations are consulted in a timely and effective manner on proposals by government for any change in legislation, procedural and administrative rules directly affecting the professional activities of lawyers and the regulation of the profession.
۴. Parties shall ensure that any requirement to belong to a professional association does not preclude lawyers from forming and taking part in other associations to promote their professional interests and activities.
Article 5 – Entitlement to practise
۱. Parties shall ensure that admission, continued authorisation and readmission to practise as a lawyer are prescribed by law and are:
b. not subject to discrimination on any ground prohibited by the case law of the European Court of Human Rights.
۲. Parties shall ensure that decisions concerning admission, continued authorisation and readmission to practise as a lawyer are taken by a professional association or other independent body and are subject to challenge before an independent and impartial court or tribunal established by law.
Article 6 – Professional rights of lawyers
۲. Parties shall ensure that lawyers shall not incur civil or criminal liability for oral and written statements made in good faith and diligently in the conduct of all proceedings on behalf of their clients.
۳. Parties shall ensure that lawyers:
۴. No restrictions shall be placed on the exercise of the rights established under paragraphs 1, 2 and 3 of this article, other than those prescribed by law and which are necessary in a democratic society. Such restrictions can include, but are not limited to, requirements to ensure the availability of legal advice, assistance and representation to all.
۵. Parties shall ensure that lawyers do not suffer adverse consequences as a result of being identified with their clients or their clients’ cause. This article shall be applied without prejudice to freedom of expression as protected by the Convention for the Protection of Human Rights and Fundamental Freedoms and domestic law.
Article 7 – Freedom of expression
۱. Parties shall ensure the right of lawyers to inform the public about matters relating to the cases of their clients, subject only to restrictions prescribed by law and that arise from professional responsibilities, the requirements of the administration of justice and respect for private life, and that are necessary in a democratic society.
۲. Parties shall ensure the right of lawyers, individually and collectively, and of professional associations to promote the rule of law and adherence to it, to take part in public discussion on the substance, interpretation and application of existing and proposed legal provisions, judicial decisions, the administration of and access to justice and the promotion and protection of human rights, as well as to make proposals for reforms concerning these matters.
Article 8 – Discipline
۱. Parties shall ensure that the grounds for disciplinary action against lawyers are based exclusively on professional standards of conduct which are prescribed by law and are themselves consistent with the rights and freedoms in the Convention for the Protection of Human Rights and Fundamental Freedoms.
i. an independent and impartial disciplinary committee established by a professional association,
ii. an independent and impartial authority, or
iii. an independent and impartial court or tribunal established by law;
۳. Parties shall ensure that any disciplinary sanctions imposed on lawyers respect the principles of legality, non-discrimination and proportionality. Any prohibition on the right to practise should only be imposed for the most serious breaches of professional standards.
Article 9 – Protective measures
۱. Parties shall ensure, subject to restrictions that are prescribed by law and are necessary in a democratic society for preventing, investigating or prosecuting crime or for protecting the rights of others, that lawyers:
ii.the seizure or copying of documents, any other data and any kind of equipment used by them for their professional activities;
except where there will be no examination of the documents or data by those conducting the search or seizure;
d. are informed about their rights in sub-paragraphs a, b, and c of this paragraph when being deprived of liberty, and before being subject to searches or the seizure or copying of documents.
۲. Parties shall ensure that appropriate safeguards are in place and observed when inspections or other measures are taken pursuant to the supervision of the profession.
۳. Parties shall ensure that professional associations are able, subject to restrictions that are prescribed by law and are necessary in a democratic society for preventing, investigating and prosecuting crime or for protecting the rights of others, to safeguard the rights set forth in this Convention, including by:
c. having the possibility of attending hearings in any proceedings brought against lawyers where there is reason to believe that this is on account of their professional activities.
۴. Parties:
i. any form of physical attack, threat, harassment or intimidation; or
ii. any improper hindrance or interference;
c. shall conduct an effective investigation into the occurrence of conduct specified by sub-paragraph a of this paragraph where there is reason to believe this may amount to a criminal offence.
۵. Parties shall refrain from adopting any measures or endorsing any practices that would undermine the independence and self-governing nature of professional associations.
Chapter III – Monitoring mechanism
Article 10 – Group of Experts on the Protection of the Profession of Lawyer
۱. The Group of Experts on the Protection of the Profession of Lawyer (hereinafter referred to as GRAVO) shall monitor the implementation of this Convention by the Parties.
۲. GRAVO shall be composed of a minimum of eight members and a maximum of 12 members. Its members shall be elected by the Committee of the Parties, established by Article 11 of this Convention, from among candidates nominated by the Parties for a term of office of four years, renewable once, and chosen from among nationals of the Parties.
۳. The initial election of eight members shall be held within a period of one year following the entry into force of this Convention. The election of four additional members shall be held following the 25th ratification or accession.
۴. The election of the members of GRAVO shall be based on the following principles:
a. the members shall be chosen according to a transparent procedure from among persons of high moral character, having demonstrated professional experience in the areas covered by this Convention;
b. no two members of GRAVO may be nationals of the same State;
d. the composition of GRAVO shall ensure a gender and geographical balance;
e. the members shall sit in their individual capacity and shall be independent and impartial in the exercise of their functions, and shall be available to carry out their duties in an effective manner.
۵. The election procedure of the members of GRAVO shall be determined by the Committee of Ministers of the Council of Europe, after consulting with and obtaining the unanimous consent of the Parties, within a period of six months following the entry into force of this Convention.
۶. GRAVO shall adopt its own rules of procedure.
۷. Members of GRAVO, and other members of delegations carrying out the country visits as set forth in Article 12 of this Convention, shall enjoy the privileges and immunities established in the appendix to this Convention.
Article 11 – Committee of the Parties
۱. The Committee of the Parties shall be composed of the representatives of the Parties to this Convention and the Parties shall endeavour to reach gender balance in its composition.
۲. The Committee of the Parties shall be convened by the Secretary General of the Council of Europe. Its first meeting shall be held within a period of one year following the entry into force of this Convention. It shall subsequently meet whenever one third of the Parties, the President of the Committee of the Parties or the Secretary General so requests.
۳. The Committee of the Parties shall adopt its own rules of procedure.
Article 12 – Procedure
۱. Evaluation procedures shall be divided into rounds. GRAVO shall define the scope and the appropriate means to carry out this procedure, such as questionnaires which may serve as a basis for the evaluation procedure of the implementation by the Parties.
۲. GRAVO shall receive information on the implementation of the Convention from the Party concerned. In addition, it may receive information on the implementation of the Convention from non-governmental organisations and civil society, professional associations, as well as from national institutions for the protection of human rights. GRAVO shall also take due consideration of information available from other Council of Europe instruments and bodies, as well as from other regional and international organisations, in areas falling within the scope of this Convention.
۳. GRAVO may organise country visits, in co-operation with the national authorities and, where necessary, with the assistance of independent national experts, if the information gained is insufficient and there are no other feasible ways of reliably gaining the information or in cases provided for in Article 13, paragraph 2, of this Convention. Visits shall be subsidiary and restricted to the areas where GRAVO decides the information is insufficient and to cases provided for in Article 13, paragraph 2, of this Convention.
۴. Visits shall be conducted by a delegation of GRAVO. During visits, the delegation may be assisted by specialists in specific fields. During visits, the delegation should:
i. enjoy freedom of movement in the relevant jurisdiction;
ii. be able to have contact with State authorities;
iii. not be prevented from meeting the persons they want to interview in private;
iv. have access to the material relevant to the country visit.
۵. GRAVO shall prepare a draft report containing its analysis concerning the implementation of the provisions on which the evaluation is based, as well as its suggestions and proposals concerning the way in which the Party concerned may deal with the problems which have been identified. The draft report shall be transmitted for comments to the Party undergoing the evaluation. Its comments shall be taken into account by GRAVO when adopting its report.
۶. On the basis of all the information received and the comments from the Party concerned, GRAVO shall adopt its report and conclusions regarding the measures taken by the Party to implement the provisions of this Convention. This report and the conclusions shall be sent to the Party concerned and to the Committee of the Parties. The report and conclusions of GRAVO shall be made public as from their adoption, together with any comments by the Party concerned.
۷. Without prejudice to the procedure of paragraphs 1 to 6 of this article, the Committee of the Parties may adopt, on the basis of the report and conclusions of GRAVO, recommendations addressed to the Party concerned:
b. aiming at promoting co-operation with this Party for the proper implementation of this Convention.
Article 13 – Urgent procedure
۱. If GRAVO receives reliable information indicating a situation where problems require immediate attention to prevent or limit the scale or number of serious violations of the Convention, it may request from the Party concerned the urgent submission of a special report concerning measures taken to prevent such violations.
۲. Taking into account the information submitted by the Party concerned, as well as any other reliable information available to it, GRAVO may designate one or more of its members to conduct an inquiry and to report urgently to GRAVO. Where warranted and with the consent of the Party concerned, the inquiry may include a visit to its territory.
۳. After examining the findings of the inquiry referred to in paragraph 2 of this article, GRAVO shall transmit these findings to the Party concerned and, where appropriate, to the Committee of the Parties, the Committee of Ministers and the Parliamentary Assembly of the Council of Europe, together with any comments and recommendations. The report and conclusions of GRAVO shall be made public as from their adoption, together with comments by the Party concerned.
Article 14 – Opinions
GRAVO may adopt, where appropriate, opinions on the implementation of this Convention.
Article 15 – Relationship with other bodies
The Committee of Ministers and the Parliamentary Assembly of the Council of Europe shall be kept periodically informed of the implementation of this Convention.
Chapter IV – Relationship with other international instruments
Article 16 – Relationship with other international instruments
۱. This Convention shall not affect the rights and obligations arising from other international instruments to which Parties to this Convention are Parties or shall become Parties and which contain provisions on matters governed by this Convention and which ensure greater protection for the right of lawyers to practise their profession freely.
۲. The Parties to this Convention may conclude bilateral or multilateral agreements with one another on the matters dealt with in this Convention, for the purpose of supplementing or strengthening its provisions or facilitating the application of the principles embodied in it.
Chapter V – Final clauses
Article 17 – Signature and entry into force
۱. This Convention shall be open for signature by the member States of the Council of Europe, the non-member States that have participated in its elaboration and the European Union.
۲. This Convention is subject to ratification, acceptance or approval. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.
۳. This Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date on which eight signatories, including at least six member States of the Council of Europe, have expressed their consent to be bound by the Convention in accordance with the provisions of the preceding paragraph.
۴. In respect of any signatory which subsequently expresses its consent to be bound by it, this Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of the deposit of its instrument of ratification, acceptance or approval.
Article 18 – Accession to the Convention
۱. After the entry into force of this Convention, the Committee of Ministers of the Council of Europe may, after consultation of the Parties to this Convention and obtaining their unanimous consent, invite any non-member State of the Council of Europe, which has not participated in the elaboration of the Convention, to accede to this Convention by a decision taken by the majority provided for in Article 20.d of the Statute of the Council of Europe and by a unanimous vote of the representatives of the Contracting States entitled to sit on the Committee of Ministers.
۲. In respect of any acceding State, the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of deposit of the instrument of accession with the Secretary General of the Council of Europe.
۳. Any Party which is not a member of the Council of Europe shall contribute to the funding of the activities of GRAVO and the Committee of the Parties according to the modalities established by the Committee of Ministers.
Article 19 – Territorial application
۱. Any State or the European Union may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, specify the territory or territories to which this Convention shall apply.
۲. Any Party may, at any later date, by a declaration addressed to the Secretary General of the Council of Europe, extend the application of this Convention to any other territory specified in the declaration and for whose international relations it is responsible or on whose behalf it is authorised to give undertakings. In respect of such territory, the Convention shall enter into force on the first day of the month following the expiration of a period of three months after the date of receipt of such declaration by the Secretary General.
۳. Any declaration made under the two preceding paragraphs may, in respect of any territory specified in this declaration, be withdrawn by a notification addressed to the Secretary General of the Council of Europe. This withdrawal shall become effective on the first day of the month following the expiration of a period of three months after the date of receipt of such notification by the Secretary General.
Article 20 – Declarations
۱. Each Contracting Party to this Convention shall, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by means of a declaration addressed to the Secretary General of the Council of Europe, indicate the professional titles falling under the scope of this Convention for the purposes of Article 3, sub-paragraph a. This declaration may be modified at any later date and in the same manner. This declaration and any modification thereof shall not undermine the purpose of this Convention and the protection provided by it.
۲. Each Contracting Party to this Convention may at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by means of a declaration addressed to the Secretary General of the Council of Europe, declare that the definition of “public authorities” includes one or more of the following bodies:
i. legislative bodies as regards their other activities;
ii. judicial authorities as regards their other activities;
iii. natural or legal persons insofar as they perform public functions or operate with public funds, according to domestic law.
This declaration may be modified at any later date and in the same manner.
Article 21 – Reservations
۱. Any State or the European Union may, at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, by a declaration addressed to the Secretary General of the Council of Europe, declare that it reserves the right not to apply or to apply only in specific cases or conditions the provisions laid down in Article 6 in respect of Article 2, paragraph 3, subparagraph b of this Convention. No other reservation may be made in respect of the provisions of this Convention.
۲. Any Party may wholly or partly withdraw a reservation by means of a declaration addressed to the Secretary General of the Council of Europe. This declaration shall become effective as from its date of receipt by the Secretary General.
Article ۲۲ – Amendments to the Convention
۱. Any proposal for an amendment to this Convention presented by a Party shall be communicated to the Secretary General of the Council of Europe and forwarded by him or her to the member States of the Council of Europe, the non-member States which have participated in its elaboration, any signatory State, any State Party, the European Union and any State invited to accede to this Convention in accordance with the provisions of Article 18, paragraph 1.
۲. Any amendment proposed by a Party shall be communicated to the Committee of the Parties, which shall submit to the Committee of Ministers its opinion on that proposed amendment.
۳. The Committee of Ministers shall consider the proposed amendment and the opinion submitted by the Committee of the Parties and may, following consultation with the non-member States Parties to this Convention, adopt this amendment.
۴. The text of any amendment adopted by the Committee of Ministers in accordance with paragraph 3 of this article shall be forwarded to the Parties for acceptance.
۵. Any amendment adopted in accordance with paragraph 3 of this article shall enter into force on the first day of the month following the expiration of a period of one month after the date on which all Parties have informed the Secretary General that they have accepted it.
Article ۲۳ – Denunciation
۱. Any Party may, at any time, denounce this Convention by means of a notification addressed to the Secretary General of the Council of Europe.
۲. Such denunciation shall become effective on the first day of the month following the expiration of a period of three months after the date of receipt of the notification by the Secretary General.
Article ۲۴ – Notifications
The Secretary General of the Council of Europe shall notify the member States of the Council of Europe, the non-member States which have participated in its elaboration, any signatory State, any State Party, the European Union and any State invited to accede to this Convention in accordance with the provisions of Article 18 of:
a. any signature;
b. the deposit of any instrument of ratification, acceptance, approval or accession;
c. any date of entry into force of this Convention in accordance with Articles 17 and ۱۸;
d. any amendment adopted in accordance with Article ۲۲ and the date on which such an amendment enters into force;
e. any declaration made in pursuance of Article ۲۰;
f.any reservation and withdrawal of reservation made in pursuance of Article ۲۱;
g. any denunciation made in pursuance of the provisions of Article ۲۳;
h. any other act, notification or communication relating to this Convention.
Appendix – Privileges and immunities (Article 10)
۱. This appendix shall apply to the members of GRAVO mentioned in Article 10 of this Convention, as well as to other members of the country visit delegations. For the purpose of this appendix, the expression “other members of the country visit delegations” shall include the independent national experts and the specialists mentioned in Article 12, paragraphs 3 and 4, of this Convention, staff members of the Council of Europe and interpreters employed by the Council of Europe accompanying GRAVO during its country visits.
۲. The members of GRAVO and the other members of the country visit delegations shall, while exercising their functions relating to the preparation and the carrying out of country visits, as well as the follow-up thereto and travelling in connection with those functions, enjoy the following privileges and immunities:
a. immunity from personal arrest or detention and from seizure of their personal baggage, and immunity from legal process of every kind in respect of words spoken or written and all acts performed by them in their official capacity;
b. exemption from any restrictions on their freedom of movement on exit from and return to their country of residence, and entry into and exit from the country in which they exercise their functions, and from alien registration in the country which they are visiting or through which they are passing in the exercise of their functions.
۳. In the course of journeys undertaken in the exercise of their functions, the members of GRAVO and the other members of the country visit delegations shall, in the matter of customs and exchange control, be accorded the same facilities as those accorded to representatives of foreign governments on temporary official duty.
۴. The documents relating to the evaluation of the implementation of this Convention carried by members of GRAVO and other members of the country visit delegations shall be inviolable. No stoppage or censorship shall be applied to the official correspondence of GRAVO or to official communications of members of GRAVO and other members of the country visit delegations.
۵. In order to secure for the members of GRAVO and the other members of the country visit delegations complete freedom of speech and complete independence in the discharge of their duties, the immunity from legal process in respect of words spoken or written and all acts done by them in discharging their duties shall continue to be accorded, notwithstanding that the persons concerned are no longer engaged in the discharge of such duties.
۶. Privileges and immunities are granted to the persons mentioned in paragraph 1 of this appendix in order tosafeguard the independent exercise of their functions in the interests of GRAVO and not for their personal benefit. The waiver of immunities of the persons mentioned in paragraph 1 of this appendix shall be made by the Secretary General of the Council of Europe in any case where, in his or her opinion, the immunity would impede the course of justice and where it can be waived without prejudice to the interests of GRAVO.
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