Advocacy, the Adversarial Process, and Judicial Accountability in

“

SUPPORT TO JUSTICE SECTOR REFORM IN UKRAINE”

ADVOCACY,

THE

ADVERSARIAL

PROCESS,

AND

JUDICIAL

ACCOUNTABILITY

IN

PENAL

CASES

By Mark Segal and Oksana Tsymbrivska

June 2014

This Project is Funded by

The European Union

This Project is Implemented by

Justice Coopération Internationale

Disclaimer: The opinions and statements made in this document are those of the Contractors implementing the Project and the authors. They are not approved by nor do they reflect the official position or views of the European Union or the Delegation of the European Union.

“ SUPPORT TO JUSTICE SECTOR REFORM IN UKRAINE”

ADVOCACY, THE ADVERSARIAL PROCESS,

AND JUDICIAL ACCOUNTABILITY IN PENAL CASES


June 2014

TABLE OF CONTENTS

I. Strengthening the Adversarial Process in Penal Cases

II. Checklist for Judicial Accountability

And Promoting Public Confidence in the Judiciary

III. Methodology for the Analysis of Criminal Defense Advocacy

Excerpts from a Report prepared by

The American Bar Association Rule of Law Initiative

IV. The Adversarial Process and Equality of Arms under

The European Convention for the Protection of Human Rights

Page

2

9

15

28

1


STRENGTHENING THE ADVERSARIAL PROCESS IN PENAL CASES


June 2014

I. Introduction

Respect for the Rule of Law and due process in legal proceedings are essential for protecting human rights. For a legal system to protect human rights, particularly in penal cases, it is necessary to have: a) A legal framework consisting of sound laws approved through a democratic, participatory, and inclusive legislative drafting process, b) Effectively managed and operated justice sector institutions which respect the separation of powers, meet institutional objectives, are soundly and professionally managed, are well-staffed and equipped, and perform their functions with integrity according to the highest standards, c) Highly trained, professional, and ethical legal professionals who are fully able to carry out their functions in an independent and impartial fashion, d) Fair and consistent application of laws and procedures in compliance with all requirements for due process and all applicable human rights standards (national and international), and e) The delivery of justice in a public, accessible, transparent, and timely fashion, so that justice is both done and seen to be done.

In penal cases, access to justice depends greatly upon the right to effective counsel, and sound procedures which enable advocates to perform their duties and protect the legitimate rights of defendants. Simply stated, the right to effective counsel which can perform its duties under the criminal justice system is the cornerstone for asserting and protecting the panoply of human rights which make trials fair.

Adversarial (accusatorial) processes which respect the equality of arms between prosecution and defense can be very effective for protecting human rights in penal cases. This is particularly the case in countries transitioning from authoritarian systems. Under Soviet practice and traditions, the judiciary is not independent, the prosecution exercises great power over operation of the justice system and the handling of penal cases, and defense lawyers have limited powers. Defendants enjoy limited procedural safeguards, since the prosecution has broad powers and defense counsel is highly constrained. Therefore, in countries such as Ukraine, it is appropriate to make the penal system more adversarial, by establishing equality of arms between prosecution and defense, and having both sides present their cases and arguments to an impartial judge, under rules and procedures which promote due process of law and protect human rights.

II. Key Elements of the Adversarial Process and Equality of Arms

The “adversarial process” can best be described as a lawful competition between the prosecution

(representing the interests of the State or society) and the defense (representing the interests of the defendant) before an independent judge or arbiter of fact and law (court).

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Under the principle of “ equality of arms ”, the prosecution and defense have an equal opportunity to develop and present their cases to an impartial arbiter, who makes rulings on the facts and the applicable law. The defendant is presumed innocent, and has a full opportunity to refute the charges presented by the State, with meaningful assistance of counsel. This takes place according to procedural safeguards which are established by law, and applied uniformly and consistently, regardless of the type of crime, characteristics of the defendant, or location of the trial. This accusatorial paradigm is in contradistinction to an inquisitorial approach, which brings the entire apparatus of the State against the individual, who is presumed to have a case to answer.

There are three basic principles or elements of a sound adversarial process. They correspond to the roles of the three main actors in judicial proceedings, namely judges, prosecutors, and defense counsel.

1. Principle Number One: Judges are independent and neutral

This means that neither the prosecution nor the defense has any means or mechanisms to influence judges or judgements, aside from the content and veracity of their cases and their explanations of the law which applies. Judicial decisions are made according to the law, as it is applied to the facts, without external or improper influences. Rulings are explained and justified, in a transparent manner.

The performance and demeanour of judges exemplifies neutrality at all hearings and at all times, even outside the courtroom. Judges uphold the highest possible standards of professionalism and integrity.

They are subject to professional discipline through sound procedures in cases of ethical violations, but not as a result of the outcomes of their cases.

The importance of an impartial judiciary is well established under international law. For example,

Paragraph 2 of the Basic Principles on the Independence of the Judiciary, adopted by the United

Nations Generally Assembly in 1985, stipulates that the judiciary shall decide matters impartially, on the basis of facts and in accordance with law, without restrictions, improper influences, inducements, pressures, threats, or interference.

Principle Number One can be summarized as follows:

impartial judges adjudicate.

2. Principle Number Two: Prosecutors represent the State and present its case against defendants

Prosecutors are responsible professionals (within the prosecutorial apparatus) who seek to convict parties that they genuinely believe have committed criminal offenses, when they can present adequate and verifiable proof. Prosecutors work within the law and are bound by it. Investigations and the presentation of evidence and testimony are conducted according to law and due process, without improper prejudice to defendants. Prosecutors respect the rights of defendants, and ensure that they enjoy the protections provided by law, including the right to effective defense counsel. Judicial proceedings are carried out with full respect for the principles and key elements of due process.

Accordingly, prosecutors share all evidence with the defense, even (and especially) that which is

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exculpatory in nature. Prosecutors do not have any rights and do not exercise any influence beyond the presentation of their case against defendants.

Principle Number Two can be summarized as follows:

prosecutors prosecute.

3. Principle Number Three: Qualified and independent defense counsel zealously protect the rights of their clients

Defense counsel are independent professionals who take all legitimate measures possible to assert and protect the interests of their clients. They do so without consideration of their own interests. They have full access to their clients, and communications and case materials are protected and confidential. They are fully empowered to conduct investigations, interview witnesses, assess evidence, and otherwise develop their case. This enables them to challenge all elements of the prosecution’s case, including evidence, testimony from witnesses, and expert opinions. They make the prosecution prove each and every element of its case by a high burden of proof (preferably “beyond a reasonable doubt”). They are secure in their work, and do not face any threats to the independent exercise of their profession.

The requirement for independent lawyers to zealously serve the needs of their clients in penal cases is well established under international law. For example, the United Nations Basic Principles on the Role of Lawyers (1990) state that everyone is entitled to effective access to legal services provided by independent legal professionals who assist their clients “in every appropriate way” (Article 13). The

Code of Conduct for European Lawyers of the Council of Bars and Law Societies of Europe describes lawyers as “the client’s trusted adviser and representative” (Principle 6), who “must always act in the interests of the client” (Article 2.7).

Principle Number Three can be summarized as follows:

defense counsel defends.

It is also important to note that the role of investigators can change with greater equality of arms.

Standards for investigation must be of the highest level, since every aspect of the case is subject to challenge by defense counsel and judicial review. Less reliance upon confessions (often obtained under questionable circumstances) means additional obligations concerning preparations for trial. Thus, it will be necessary to a) carefully secure crime scenes, b) meticulously obtain and catalogue evidence, c) fully document all handling and movement of evidence, d) ensure the quality of and fully document all tests and analyses that are performed, and e) ensure that evidence is in excellent condition for use at public trial. Throughout this process, the rights of the defense to access and assess evidence and testimony (from both witnesses and experts) must be respected and preserved.

Defective investigatory procedures undermine prosecution. Defense counsel will challenge shortcomings in the preparation and presentation of evidence and testimony in order to raise doubts concerning guilt. Investigators do a great dis-service to prosecutors and potentially cause them embarrassment before the public and media in open court if they do not respect all elements of due process and carefully protect all stages of the “chain of custody” for evidence.

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III. Adversarial Processes and Equality of Arms Under Ukrainian Law

First of all, it is necessary to emphasize that many elements of adversarial processes and equality of arms are mandatory for Ukraine, as a result of its membership in the Counsel of Europe, ratification of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and obligation to follow decisions (case law) of the European Court of Human Rights. Second, since many aspects of adversarial processes and equality of arms are now widely considered best practice, and specified in various legal instruments promulgated and promoted by international institutions and professional associations, their application in Ukraine is consistent with its overall effort to meet international standards that promote the rule of law and protect human rights.

In addition, as discussed below, Ukrainian legislation establishes a mixed system, incorporating elements of both accusatorial and inquisitorial practice. The new Code of Criminal Procedure proclaims adversarial processes as an objective, and has numerous provisions which apply them. And the Decree of the President of Ukraine dated 8 April 2008 No. 311/2008 on the Concept Paper on the

Reform of the Criminal Justice in Ukraine calls for expanding “competition between the parties”, eliminating “the accusatory bias in the work of the courts”, and ensuring “equality before the law of all the citizens” and “procedural equality of parties in the criminal process”.

The main question that arises and must be resolved is how well these principles are applied in practice.

1. With respect to Principle Number One and the independence of the judiciary

Ukrainian legislation sets the stage for independence of the judiciary. For example:

 Articles 126, 129, and 206 of the Constitution establish the independence and immunity of judges, grant judges independence subject only to the law, and impose upon judges a general duty to protect human rights and allow parties to present and prove their evidence in court.

 Article 6 of the Law on Judiciary and Status of Judges establishes the autonomous authority of the court to administer justice, and provides that “in the administration of justice, courts shall be independent from any undue influence”.

 Article 15 of the Code of Judicial Ethics provides that “Impartial consideration of cases is a principal duty of a judge”.

However, in practice, it is regularly alleged and commonly believed that judges are a) heavily influenced by and partial to prosecutors, b) directed towards specific rulings by superiors within the court system, and c) influenced by political forces outside the judiciary. Furthermore, judges also face the threat of professional discipline, such as for “breach of oath”, based upon the outcome of the cases that they hear, even in the absence of any professional misconduct. Managerial institutions within the judiciary are not fulfilling their mandates or operating efficiently. There are obstacles to transparency and access to information. And basic human rights and the professional independence of advocates are

5

threatened in penal cases. These factors combine to undermine public confidence in the judiciary, and have led to efforts to conduct a lustration of the judiciary.

Steps are required to strengthen managerial institutions for the judiciary, protect the work of judges and their handling of cases from any undue influence, improve the working conditions for judges and other court personnel, and insulate their career progress from extraneous or improper evaluation criteria. A wide range of measures are needed to enhance public confidence in the judiciary.

2. With respect to Principle Number Two and the specific duty of prosecutors to represent the State and present its case against defendants

Prosecutorial reform is arguably the major requirement for moving towards a more adversarial system in Ukraine. And application of the principle of equality of arms will significantly affect the work of prosecutors. Simply stated, the prosecution will have to scale back a number of powers, prerogatives, and procedural rights that it retains from the Soviet period.

The first and most important issue that requires attention is the expansive powers of the prosecution with respect to supervising the justice system, and representing the general interests of society or individual citizens. The “general supervisory powers” of the prosecution under Article 121 of the

Constitution go far beyond charging defendants in penal cases. The Venice Commission has recommended that constitutional and legislative amendments curtail the following:

 Power to summon parties to appear before them

 Ability to enter premises and obtain information in order to secure compliance with laws

 Right to intrude in functions of executive institutions, including participation in proceedings of the Verkhovna Rada, boards of ministries, local councils, and administrative bodies

 Ability to interfere in the interests and activities of private individuals and organisations

 Right to appeal or petition for review of court judgments in civil, administrative, and commercial cases, without having previously participated in the case

It is widely considered that these powers can give prosecutors an unfair advantage during penal cases, and enable them to unduly influence the work of judges and advocates.

Limiting prosecutorial powers will require amending dozens of laws, in addition to the new Law on the

Public Prosecutor’s Office. For example, Article 45, Paragraph 2 of the Code of Civil Procedure enables prosecutors to represent individuals and state bodies in court proceedings. This process will also require the prosecution to allow other institutions, such as the Ukrainian Parliament Commissioner for Human Rights, Civil Society Organisations, and the Ukrainian National Bar Association to exercise more duties with respect to the protection of human rights.

From an institutional perspective, a) leadership of the prosecution needs to be depoliticised and more technocratic, b) career development of prosecutors needs to be based on objective criteria like

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competence and experience, c) the assignment of cases has to be transparent and fair, d) there needs to be some form of independent oversight of prosecutorial functions, and e) disciplinary procedures need to be consistent and transparent, and based upon actual ethical violations, not the outcome of specific cases. Capacity development is important for upgrading practice and skills, and depends upon improving the training system, the skills of instructors, the content of courses, and the quality of materials. Technical assistance from development projects can play an important role in identifying and applying the most appropriate international standards and best practices.

The adoption of a more adversarial approach will concretely affect the overall methodology and working procedures of the prosecution in penal cases: It is important that:

 Prosecutors approach their work as public officials who represent the State and act in the interests of the legal system. This includes demonstrating respect for principles like the separation of powers, independence of the judiciary, equality of arms, right to defense, transparency, and access to court proceedings on the part of the public and the media.

 Prosecutors prepare their cases for public trial, perhaps with media attention.

 Prosecutors skilfully present persuasive arguments, evidence, and testimony in open court.

 Prosecutors adapt to and accept the exclusion/rejection of confessions which are obtained under questionable circumstances or in violation of the right to counsel.

 Prosecutors adapt to and accept the exclusion/rejection of evidence which is not collected, identified, handled, tested, stored, and transported according to highest possible standards.

 Prosecutors face ethical charges if they knowingly

use inadmissible confessions or evidence.

 Prosecutors treat witnesses as independent parties, whose testimony is not subject to any control and who are completely accessible to defense counsel.

Some of these changes to long-standing practice will encounter resistance. For that reason, a concerted effort by diverse interested parties is appropriate.

3. With respect to Principle Number Three and the duty of defense counsel to zealously protect the rights of their clients

As stated above, the obligations of defense council in countries transitioning from a Soviet system are best fulfilled when basic principles of adversarial processes and equality of arms are applied.

Under Ukrainian law, the following provisions are highly relevant:

 Article 7 of the Code of Criminal Procedure provides that general principles of penal proceedings include: “the adversarial nature of parties” and “freedom to present evidence to the court and prove the preponderance of this evidence before the court”.

 Article 22 Section 1 of the Code of Criminal Procedure states that “Criminal proceedings shall be conducted on the basis of an adversarial approach envisaging independent assertion by the side of prosecution and the side of defense of their legal positions, rights, freedoms and

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legitimate interests by means set forth in the present Code”. Under Section 2 of this Article, parties to criminal proceedings have equal rights to collect and produce items, documents, evidence, motions, complaints, and enjoy procedural rights.

 Article 290 of the Code of Criminal Procedure requires prosecutors to share the contents of their file, and Article 317 requires judges to ensure that this takes place at the start of trial.

 Article 23 of the Code of Criminal Procedure requires that prosecutors present their witnesses at trial, so that the defense can examine them before an independent and impartial court.

Otherwise, according to Article 87, Section 2, Point 5, the court must find such testimony

(evidence) inadmissible.

 Article 23, Section 1, Point 5 of the Law on the Bar and Advocate’s Activity, provides that:

“An advocate shall be guaranteed equal rights with the other participants in the proceedings, the observance of principles of the adversarial approach to and freedom in the provision of evidence and the proving of its strength.”

The Code of Criminal Procedure and other recent legislation are important steps forward. They set the foundation for a more adversarial system, and create important new tools for the defense in penal cases. In addition, training is being delivered to advocates by many parties, and guidelines for their work are being put in place. However, more needs to be done. Further reforms will need to address fundamental aspects of the way that judges, prosecutors, and advocates perform their duties.

IV. Conclusion

Despite current reforms and the objectives and provisions of the revised legal framework, many daily practices in penal cases are not sufficiently adversarial, and significant structural and procedural changes are required to establish the equality of arms between prosecution and defense. Institutions must be reformed and strengthened, management of the legal professions must be improved, skills of legal professionals must be enhanced, procedures must be modernized, enforcement of ethical standards must be fairer and better administered, information management must be improved, and transparency must be increased. Furthermore, regional disparities must be overcome, since implementation of reforms lags outside of the main population centers. Finally, there must be a change in mentality on the part of the management of juridical institutions and the key legal professionals.

To achieve these goals, is important to strategically assess the steps which are required to establish a more adversarial system under which independent judges adjudicate, prosecutors prosecute, and advocates zealously defend, with equality of arms between prosecution and defense. The first step in this process is for judges, prosecutors, and advocates to assess and delineate the reforms and measures which they require in order to move forward. A sound strategic planning process can set the stage for identifying and implementing meaningful reforms that establish a more adversarial system with equality of arms and better protect human rights in practice. While significant progress has been made in recent years, a great deal of work remains to be done.

END

8


CHECKLIST FOR JUDICIAL ACCOUNTABILITY

AND PROMOTING PUBLIC CONFIDENCE IN THE JUDICIARY


June 2014

I. Introduction

Judicial accountability and public confidence in the judiciary are important indicators of the extent to which the Rule of Law and human rights are respected in practice. Judicial institutions, the courts, and legal professionals (judges, prosecutors, and lawyers) all serve the interests of society when they professionally perform their functions in accordance with the requirements of due process and applicable ethical standards. The extent to which society is being served is reflected in the level of trust and confidence that it has in judicial institutions and judges. The extent to which society has trust and confidence in judicial institutions and judges is an important indicator of how well advocates and lawyers are able to carry out their professional duties (in the broadest sense).

While all countries have an obligation to assess and enhance public confidence in their judicial institutions and judges, it can be argued that countries in transition need to pay special and regular attention to these tasks. This is because they need to a) monitor and evaluate how well they are carrying out reforms and establishing a system based on the Rule of Law and the protection of human rights, and b) take remedial measures whenever required and to the maximum extent possible.

In order to assess and enhance public confidence in the judiciary and judges, it is extremely helpful to utilize a matrix, or checklist, which covers all of the key factors which need to be considered. The matrix presented below facilitates evaluation of how the courts and judges in a country are fulfilling their duties and generating public confidence. It is extremely useful for designing and implementing ameliorative measures, which can improve the situation and raise public confidence. The matrix covers the functioning of the judiciary in general, but is particularly applicable to penal cases, where the prosecutorial powers of the State are exercised against individuals.

Naturally, the importance and relevance of specific parameters varies between different countries and systems. Therefore, the parameters are not prioritized or quantified. Nonetheless, the matrix makes it possible to take a more systematic and comprehensive approach, and determine how to achieve progress and which parties should be involved.

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II. Checklist for Judicial Accountability and Promoting Public Confidence in the Judiciary

CHECKLIST FOR JUDICIAL ACCOUNTABILITY

AND PROMOTING PUBLIC CONFIDENCE IN THE JUDICIARY

CATEGORY FACTOR

I.

Functional

Independence of the

Judiciary

II.

Governance of the Judiciary

III.

Judges and their Work

Constitutional provisions and legal acts guarantee the independence of the judiciary, and are implemented

The separation of powers is respected in practice, and there are “Checks and Balances” between executive, legislative, and judicial institutions

The judiciary is de-politicized, and not subject to any political or external influence

The judiciary has sufficient funding to carry out its functions, and is able to adequately manage its own financial operations

Institutions which govern and manage the judiciary are well-structured and function soundly. Relevant factors include:

 Mandates

 By-Laws

 Management

 Strategic Planning

 Human Resources

 Procedures and Operations

 Reporting

 Transparency

Judges are selected according to sound laws and procedures. Relevant factors include:

 The selection process is carried out according to law, with appropriate oversight and participation of all relevant parties

 The selection process is transparent and technocratic, and not politicized

 Candidates are selected on the basis of skills and qualifications

Judges enjoy professional independence. There are no external influences on judges when they make rulings. Rulings are based exclusively on the facts and law of each case.

COMMENTS

10

Judges have immunity from prosecution and legal sanctions in the performance of judicial duties

There is professional supervision and performance management of the work of judges, in accordance with all applicable standards and rules, and without any interference in their handling of cases

Judges have sufficient remuneration (including salary and benefits), ample and secure office space, and good working conditions

Judges have reasonable career prospects.

Relevant factors include:

 Policies

 Rules and regulations

 Procedures

 Criteria and indicators for advancement

 Tenure and security of position

 Retirement and pension benefits

Asset Disclosure Requirements are reasonable and accurately implemented. Information is properly collected, stored, protected, and put to proper use.

Training and Professional Formation is carried out. This includes:

 Initial training (in preparation for work as a judge)

 Continuing training (raising qualifications of sitting judges)

The system of ethics and disciplinary procedures promotes professional behavior and discourages/ sanctions misconduct. Relevant factors include:

 Sound rules and regulations

 Due process, integrity, and fairness of the system

 Professional and impartial management and administration of the system

 Transparency and access to information

 Prevention of abuse of the disciplinary process for ulterior motives

Personal conduct of judges outside of court is appropriate and in accordance with standards

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IV.

Court

Operations and Hearings

Proper accounting and disclosure of information concerning financial operations of the courts

Jurisdiction of courts (specialization and types of courts, number of levels)

Appellate system and procedures for appeals

Suitable mechanisms for E-Justice

Distribution of cases to judges (random and not subject to favoritism, influence, or abuse)

Suitable facilities are available for holding hearings and conducting official business

Hearings are conducted fairly and according to the rules of procedure. Relevant factors include:

 Respect for due process

 Protection of key rights, such as right to counsel and right to be heard

 The adversarial process and equality of arms are respected in practice

 Judges observe and enforce the rules of behavior and decorum

 The prosecution, advocates, parties, and witness are all treated respectfully and correctly

Public involvement in court hearings, such as through the jury system, is carried out according to the rules and standards of due process

Public access to court facilities and hearings is guaranteed and respected in practice, without inappropriate obstacles

Hearings are transmitted, recorded, or transcribed, and records are stored and made accessible, as appropriate

Support staff and court administration perform their functions professionally, correctly, respectfully, and transparently

Information management is carried out professionally and transparently. Relevant factors include:

 Computerization

 Good filing system and record keeping

 Access to information is assured, including court statistics, the status of cases, court calendars, etc.

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V.

Jurisprudence and Case Law

VI.

Oversight

Role of the

Judiciary

VII.

Public

Relations,

Public

Oversight, and

Transparency

Auditing and control functions are in place, to ensure ethical performance of duties by court personnel and prevent/control corruption

Judgments are promptly enforced

Case decisions are harmonized, in order to prevent inconsistencies and promote the predictability of rulings

Court rulings are accessible, published, and placed in appropriate databases

Sentences are proportionate with the magnitude of the crime committed

Sentencing is consistent, and there is no immunity or impunity as a result of special status

The judiciary exercises legislative oversight by reviewing the constitutionality of legislation

The judiciary exercises executive oversight by reviewing the legality of administrative action

The judiciary exercises its proper role in the protection of human rights, under national legislation and applicable international obligations

Dissemination of written information about the judiciary and court cases is carried out effectively and systematically. This includes publication of:

 Statistics

 Reports

 Information about cases and their status

Media relations and public outreach for the judiciary are carried out effectively and systematically. This includes:

 Press conferences, as appropriate

 Press releases, as appropriate

 Use of social media, as appropriate

Trained concerning public relations is provided to designated court spokespersons, judges, and other court personnel

The public is canvassed, through surveys and court user satisfaction questionnaires, and the results are published and utilized for administrative and training purposes

Judicial websites provide comprehensive, regularly updated, and useful information in a user-friendly format

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Public access to court buildings and hearings is assured, and proper arrangements for hospitality are made

Hearings are broadcast and disseminated through the media, as appropriate under the rules of procedure

Civil Society Organizations have full access to the courts and hearings, for monitoring, reporting, and other social purposes

Transparency is systematically practiced with respect to rulings, finances, court operations, personnel, ethics and discipline, public and media access, and relations with civil society

III. Conclusion

The Checklist for Judicial Accountability and Public Confidence in the Judiciary presented above serves as a template for analyzing the extent to which the judiciary is serving the interests of the people and protecting their rights in practice, and how well it is reaching out to the people to keep them informed and involved. It is also useful for legal professionals (judges, prosecutors, and advocates) who wish to improve their performance and that of the court system. Reforms which are based on a systematic and comprehensive approach to the standards embodied in the Checklist are most likely to lead to sustainable progress towards an effective, efficient, and transparent court system that delivers justice and protects human rights.

END

14

THE AMERICAN BAR ASSOCIATION RULE OF LAW INITIATIVE

METHODOLOGY

FOR THE ANALYSIS

OF CRIMINAL DEFENSE ADVOCACY

This document presents excerpts from a larger report, entitled “Comparative Analysis of

Criminal Defense Advocacy in Albania, Bosnia and Herzegovina, Kosovo, Macedonia, and

Serbia”. Specifically, the international standards have been separated from the country specific information. This has been done in the interests of brevity, and to focus attention on the framework for international standards, which can be applied to other countries. The full report can be downloaded at: http://www.americanbar.org/content/dam/aba/directories/roli/balkans/balkans_regional_comparative_a nalysis_of_criminal_defense_advocacy_0214.authcheckdam.pdf

Copyright © 2014 by the American Bar Association

1050 Connecticut Avenue, NW, Suite 450

Washington, DC 20036

ISBN: 978-1-62722-662-2 (print)

ISBN: 978-1-62722-663-9 (PDF)

“Reprinted by permission of the American Bar Association. All rights reserved.”

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INTRODUCTION:

ABA ROLI drew on several assessment tools that it has already developed, including the Detention

Procedure Assessment Tool (DPAT), Access to Justice Assessment Tool (AJAT), Judicial Reform

Index (JRI), Legal Profession Reform Index (LPRI), and Prosecutorial Reform Index (PRI), using these to help design the structure and process of this assessment. In order to address the issue of differences in legal cultures, ABA ROLI used a wide set of international standards to create a common picture of what a strong, independent, and effective criminal defense bar looks like. The sources for these standards include the Council of Europe’s Recommendations on the Freedom of

Exercise of the Profession of Lawyer; the International Bar Association Standards for Independence of the Legal Profession, Policy Guidelines for Training and Education of the Legal Profession,

International Principles on Conduct for the Legal Profession; Council of Europe’s Recommendations on the Freedom of Exercise of the Profession of Lawyer; the United Nations Basic Principles on the

Legal Professions, Basic Principles on the Role of Lawyers; and the World Bank Civil Society

Overview. ABA ROLI also referred to international law, including the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights and Fundamental

Freedoms (ECHR).

After identifying what a criminal defense bar should look like, ABA ROLI compiled a set of ten factors, which contribute to the existence of a strong, independent, and effective criminal defense bar and correspond to a healthy criminal defense system. ABA ROLI divided these factors into three main thematic areas. These themes and factors are:

1.

The Practice of Criminal Defense Law, including factors on Education and Qualification,

Licensing and Professional Development, Professional Independence, and Ethics, Discipline, and Immunity;

2.

The Duties of Lawyers and the Rights of Clients, including factors on the Lawyer/Client

Relationship, Protecting the Rights of the Accused, and Promoting Access to Justice; and

3.

Relationships with Non-Governmental Criminal Justice Actors, including factors on

Professional Associations of Lawyers, Civil Society, and The Media and General Public.

The international standards and laws that ABA ROLI used to analyze the information for each factor are explained in the text box at the beginning of the factor. Prior to the factor analysis, this report provides extensive background information on the region and countries assessed, in order to help the reader put the information analyzed in the factors in its historical and legal context.

ABA ROLI used a rights-based approach when identifying factors to consider. In a rights-based approach, the assessor examines the system to evaluate whether and if so how the holder of the rights, in this case the accused, is well served and empowered by the system. The rights-based approach ensures that the evaluator is asking these questions alongside questions of whether and if so how the duty bearer, in this case the defense advocate, is upholding their responsibilities.

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I. THE PRACTICE OF CIRMINAL LAW

Factor 1: Education and Qualification

Lawyers should have appropriate education and training, including regarding professional ethics, human rights and fundamental freedoms, and both theoretical knowledge and practical skills.

International Standards:

Governments, professional associations of lawyers and educational institutions shall ensure that lawyers have appropriate education and training designed to promote knowledge and understanding of the role and the skills required in practicing as a lawyer, and be made aware of the ideals and ethical duties of the lawyer and of human rights and fundamental freedoms recognized by national and international law. (3) Legal education shall be open to all persons with requisite qualifications and no one shall be denied the opportunity to pursue legal education by reason of race, color, sex, religion, political or other opinion, national or social origin, property, birth, status or physical disability. (4)

Governments, professional associations of lawyers, and educational institutions should take special measures to provide opportunities for candidates from groups whose needs for legal services are not met, particularly where such groups have distinct cultures, traditions, or languages or have been the victims of past discrimination, to enter the legal profession.(5)

Professional associations of lawyers shall work to ensure that there is continuous improvement to the quality of preparation provided to would-be lawyers, as appropriate to the practices and qualification requirements of their respective jurisdictions; that such training incorporates both practical and theoretical knowledge and provides the necessary level of legal knowledge and skill-sets necessary to provide useful legal services to the public; that such training gives special emphasis to ethical considerations and issues; and that such training is available and affordable to future lawyers. (6)

Factor 2: Licensing and Professional Development

A high standard of legal training and ethics should be a prerequisite to entry into the profession of lawyer. Programs of continuing legal education should strengthen legal skills and increase awareness of ethical and human rights issues.


Every person having the necessary qualifications in law shall be entitled to become a lawyer and to continue in practice without discrimination.(7) All necessary measures should be taken to ensure a high standard of legal training and morality as a prerequisite for entry into the profession.(8) Decisions concerning the authorization to practice law or to enter the profession of lawyer should be taken by an independent body. Such decisions should be subject to review by an independent and impartial judicial authority. (9) Governments, professional associations of lawyers, and educational institutions shall

17

ensure that there is no discrimination against a person with respect to entry into or continued practice within the legal profession on grounds of race, color, sex, ethnic origin, religion, political or other opinion, national or social origin, property, birth, economic or other status. (10)

Programs of continuing education should seek to strengthen legal skills, increase awareness of ethical and human rights issues, and train lawyers to respect, protect, and promote the rights and interests of their clients and support the proper administration of justice, (11) and shall have regard to the social responsibilities of the lawyer, including co-operation in providing legal services to the needy and the promotion and defense of legal rights of economic, social, cultural, civil, or political nature, especially rights of such nature in the process of development. (12)

Factor 3: Professional Independence

Lawyers must be able to counsel and represent their clients free of outside influence from any source, including conflicts of interest.


Lawyers should be able to counsel and to represent their clients in accordance with their established professional standards and judgment without any restrictions, influences, pressures, or undue interference from any quarter or for any reason. (13) Governments shall ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; are able to travel and to consult with their clients freely both within their own country and abroad; and shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.

(14) Governments shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential. (15) Lawyers should enjoy freedom of belief, expression, movement, association, and assembly, and the right to take part in public discussions concerning the law and the administration of justice and suggest legislative reforms.

Lawyers should not suffer or be threatened with any sanctions or pressure when acting in accordance with their professional standards. (16)

The independence of lawyers in dealing with persons deprived of their liberty shall be guaranteed so as to ensure that they have free, fair, and confidential legal assistance, including the lawyer’s right of access to such persons. Safeguards shall be built to avoid any possible suggestion of collusion, arrangement, or dependence between the lawyer who acts for them and the authorities. (17)

Independence also requires that a lawyer act for a client in the absence of improper conflicting selfinterest, undue external influences, or any concern which may interfere with a client’s best interest or the lawyer’s professional judgment. The fact that lawyers are paid by a third party must not affect their independence and professional judgment in rendering their services to the client. (18) Lawyers engaged in legal service programs and organizations financed wholly or in part from public funds shall

18

enjoy full guarantees of their professional independence. (19)

Factor 4: Ethics, Discipline, and Immunity

Ethical standards should be drawn up and discipline enforced by professional associations of lawyers.

Lawyers should enjoy immunity for statements made in good faith in their professional capacity.


Lawyers shall at all times maintain the honor and dignity of their profession as essential agents of the administration of justice, (20) and shall at all times maintain the highest standards of honesty, integrity and fairness towards clients, the court, colleagues, and all those with whom the lawyer comes into professional contact. (21)

Professional associations of lawyers should draw up professional standards and codes of conduct and should ensure that, in defending the legitimate interests and rights of their clients, lawyers have a duty to act independently, diligently, and fairly. (22) Charges or complaints made against lawyers in their professional capacity shall be processed expeditiously and fairly under appropriate procedures.

Disciplinary proceedings against lawyers shall be brought before an impartial disciplinary committee established by the legal profession, before an independent statutory authority, or before a court, and shall be subject to an independent judicial review. Lawyers shall have the right to a fair hearing, including the right to be assisted by a lawyer of their choice. (23)

Lawyers shall enjoy civil and penal immunity for relevant statements made in good faith in written or oral pleadings or in their professional appearances before a court, tribunal, or other legal or administrative authority. (24)

II. THE DUTIES OF LAWYERS AND THE RIGHTS OF CLIENTS

Factor 5: The Lawyer/Client Relationship

Lawyers should act in the best interests of their clients, within the limits of professional ethics and the interests of justice.


A lawyer shall treat client interests as paramount, so long as the clients’ interests do not conflict with the lawyer’s duties to the court and the interests of justice, to observe the law, and to maintain ethical standards. (25) The duties of lawyers towards their clients shall include advising clients as to their legal rights and obligations, the working of the legal system, and the likely outcome and consequences of the case, including cost; endeavoring to resolve a case amicably; taking legal action to promote, respect, and enforce the rights and interests of their clients; avoiding conflicts of interest; and not

19

taking up more work than they can reasonably manage. (26) A lawyer shall at all times maintain and be afforded protection of confidentiality regarding the affairs of present or former clients, in accordance with internal laws, regulations, and professional standards; any violation of confidentiality without the client’s consent should be subject to appropriate sanctions. (27)

Unless prevented by professional conduct rules or by law, a lawyer shall be free to take on or reject a case. (28) No court or administrative authority shall refuse to recognize the right of a lawyer qualified in that jurisdiction to appear before it for his client. (29) A lawyer should not withdraw from representation of a client except for good cause or upon reasonable notice to the client, and must minimize any potential harm to the client’s interests. (30)

Lawyers are entitled to a reasonable fee for their work, and shall not charge an unreasonable fee. A lawyer shall not generate unnecessary work. (31)

Factor 6: Protecting the Rights of the Accused

Lawyers must advise clients as to their legal rights and obligations and take legal action to promote, respect, and enforce the rights and interests of their clients. Lawyers must have access to their clients and to such facilities and privileges as are necessary to effectively fulfill their professional responsibilities.


All persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings. (32) The right to counsel encompasses three guarantees:

1.

The right to be informed of the right to counsel promptly after arrest;

2.

The right to choose one’s counsel or, where the interests of justice or indigent status of the accused so require, to elect to have free legal counsel appointed by the state; and

3.

The right to defend oneself. (33)

Governments shall ensure that all persons are immediately informed by the competent authority of their right to be assisted by a lawyer of their own choice upon arrest or detention or when charged with a criminal offense; all persons arrested or detained, with or without criminal charge, shall have prompt access to a lawyer, and in any case not later than forty-eight hours from the time of arrest or detention.

(34) Whenever a state does appoint counsel free of charge for a detainee, the appointed lawyer must be able to provide “effective” legal assistance, and as such, must be “of experience and competence commensurate with the nature of the offense.” (35)

All arrested, detained, or imprisoned persons shall be provided with adequate opportunities, time, and facilities to be visited by and to communicate and consult with a lawyer, without delay, interception, or

20

censorship and in full confidentiality and outside earshot of law enforcement or detention facility officials. (36) Lawyers should have access to their clients, including to persons deprived of liberty, to enable them to counsel in private and to represent their clients according to established professional standards. (37)

Lawyers shall have such facilities and privileges as are necessary to fulfill their professional responsibilities effectively, including confidentiality of the lawyer-client relationship, protection of the lawyer’s files and documents from seizure or inspection, and protection from interception of the lawyer’s electronic communications; the right to travel and to consult with their clients freely both within their own country and abroad; and the right freely to seek, to receive, and, subject to the rules of their profession, to impart information and ideas relating to their professional work. (38)

Lawyers must advise clients as to their legal rights and obligations and take legal action to promote, respect, and enforce the rights and interests of their clients. (39) In protecting the rights of their clients and in promoting the cause of justice, lawyers shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession. (40) Lawyers necessarily must be aware of their clients’ rights; rights of persons suspected or accused of a crime include, among others, a right against unlawful or arbitrary detention; a right to be informed at the time of arrest of the reasons for arrest and to be promptly informed of any charges; a right to examine witnesses and evidence; a right to counsel at all levels of the criminal process; a right to be presumed innocent; a right to be present at trial and to be tried without undue delay; a right to a fair trial; a right not to be subjected to torture or inhuman or degrading treatment or punishment; a right to an interpreter if needed; and a right to review of a conviction by a higher tribunal. (41)

Factor 7: Promoting Access to Justice

Lawyers must make their services available to all sectors of society so that no one may be denied justice. Professional associations of lawyers should work to ensure the delivery of legal assistance and advice to persons who cannot afford a lawyer.


Realizing access to justice means empowering citizens to use justice institutions and empowering institutions to provide fair solutions to citizens’ problems. (42)

All necessary measures should be taken to ensure that all persons have effective access to legal services provided by independent lawyers. (43) Governments shall ensure that efficient procedures and responsive mechanisms for effective and equal access to lawyers are provided for all persons within their territory and subject to their jurisdiction, without distinction of any kind, such as discrimination based on race, color, ethnic origin, sex, language, religion, political or other opinion, national or social origin, property, birth, economic or other status. Governments shall ensure the provision of sufficient

21

funding and other resources for legal services to the poor and, as necessary, to other disadvantaged persons. (44)

It is a necessary corollary of the concept of an independent bar that its members shall make their services available to all sectors of society so that no one may be denied justice. (45) A form of state funded legal aid must be regarded as a human right to enable individuals to seek and receive legal advice and to assert and protect their rights under law in criminal and civil proceedings.

Bar associations should encourage the setting up of legal aid systems where none exists, and all lawyers should participate in or otherwise support legal aid systems. (46) Professional associations of lawyers shall cooperate in the organization and provision of services, facilities and other resources.

Governments and professional associations of lawyers shall promote programs to inform the public about their rights and duties under the law and the important role of lawyers in protecting their fundamental freedoms. Special attention should be given to assisting the poor and other disadvantaged persons so as to enable them to assert their rights and where necessary call upon the assistance of lawyers. (47)

Lawyers should be encouraged to provide legal services to persons in an economically weak position.

(48) Lawyers, law firms, bar associations, and other organizations employing lawyers, whether nonprofit or for profit, are strongly encouraged to develop or improve specific pro bono policies and programs, to create the conditions and incentives so that pro bono work is encouraged, valued and rewarded, and to pursue or provide continuing legal education in this field, as pro bono legal service is closely linked to the corporate social responsibility of the legal profession. (49) Lawyers’ duties toward their clients should not be affected by the fact that their fees are paid wholly or in part from public funds, and lawyers providing legal services paid wholly or in part from public funds shall enjoy full guarantees of professional independence. (50)

III. RELATIONSHIPS WITH NON-GOVERNMENTAL CRIMINAL JUSTICE ACTORS

Factor 8: Professional Associations of Lawyers

Professional associations of lawyers should be self-governing and represent the interests of lawyers, promote continuing legal education and training, and protect lawyers’ professional integrity.


Lawyers shall be entitled to form and join self-governing professional associations to represent their interests, promote their continuing education and training, and protect their professional integrity. The executive body of the professional associations shall be elected by its members and shall exercise its functions without external interference. (51) This shall be without prejudice to their right to form or join in addition other professional associations of lawyers and jurists. (52)

22

Professional lawyers associations should ensure the independence of the legal profession by promoting and upholding the cause of justice; maintaining the honor, dignity, integrity, competence, ethics, standards of conduct and discipline of the profession and protecting the intellectual and economic independence of the lawyer from his or her client; defending the role of lawyers in society and preserving the independence of the profession; protecting and defending the dignity and independence of the judiciary; promoting free and equal access of the public to the system of justice, including the provision of legal aid and advice; promoting the right of everyone to a prompt, fair and public hearing before a competent, independent, and impartial tribunal and in accordance with proper and fair procedures in all matters; promoting and supporting law reform, and commenting upon and promoting public discussion on the substance, interpretation, and application of existing and proposed legislation; promoting a high standard of legal education as a prerequisite for entry into the profession and the continuing education of lawyers; ensuring that there is free access to the profession for all persons having the requisite professional competence, without discrimination of any kind; promoting the welfare of members of the profession and the rendering of assistance to members of their families in appropriate cases; and affiliating with and participating in the activities of international organizations of lawyers. (53)

Professional associations of lawyers should take any necessary actions, including defending lawyers’ interests with the appropriate body, in the event of the arrest or detention of a lawyer; proceedings calling into question the integrity of a lawyer; any search of a lawyer’s person or property; any seizure of documents or materials in a lawyers’ possession; and publication of press reports which require action on behalf of lawyers. (54)

Factor 9: Civil Society

Lawyers and their professional associations can benefit from working closely with justice-sector civil society organizations both to advocate for common causes and in the delivery of legal services.


The term civil society refers to the wide array of non-governmental and not-for-profit organizations that have a presence in public life, expressing the interests and values of their members or others, based on ethical, cultural, political, scientific, religious or philanthropic considerations. (55) Justicesector civil society organizations around the world work to promote human rights, access to justice, rule of law, and advocate for legal reform. Professional associations of lawyers, whether voluntary associations or formally established licensing and regulating bodies such as a Chamber of Advocates, are themselves civil society organizations, and can also benefit from working closely with other civil society organizations to promote and uphold the cause of justice, ensure access to justice and the delivery of legal aid and advice, and advocate for legal reform and human rights on a national and international level. (56)

23

Lawyers can benefit from close cooperation with civil society organizations both generally and in individual cases. In many countries, justice-sector civil society organizations monitor trials, produce reports on the justice sector, provide training for lawyers on a wide range of legal issues, and offer expert testimony. Lawyers can also provide vital legal services for civil society organizations and their members, particularly in places where groups or individuals who advocate for unpopular causes may be the target of harassment or prosecution. Lawyers have the right to join or form local, national, or international organizations and attend their meetings, without suffering professional restrictions by reason of their membership or activity in a lawful organization. (57)

Factor 10: The Media and General Public

Lawyers and their professional associations should promote civic education on the rule of law, independence of the judiciary and legal profession, and civil and human rights. Lawyers should conduct themselves professionally when dealing with the public and media, and must adhere to professional ethics at all times.


It is a responsibility of the legal profession and state bodies to educate the members of the public about the principles of the rule of law and the importance of the independence of the judiciary and of the legal profession, and to inform them about their rights and duties and the relevant and available remedies. (58) Lawyers have an obligation to be professional with clients, other parties and counsel, the courts, court personnel, and the public. This obligation includes civility, professional integrity, personal dignity, candor, diligence, respect, courtesy, and cooperation, all of which are essential to the fair administration of justice and conflict resolution. (59)

As a general principle, the public and media shall have access to trials, but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. (60) In dealing with the media and public, lawyers must adhere to professional ethics, including acting in the best interests of the client, keeping confidential the information received from and advice given to clients, and maintaining the highest standards of honesty, integrity, and fairness. (61)

Lawyers should not be identified by the authorities or by the public with their client or their client’s cause, no matter how popular or unpopular it may be. (62) Professional associations of lawyers should take necessary actions on behalf of lawyers when press reports are published which may adversely affect lawyers’ interests. (63)

24

FOOTNOTES

(3) United Nations, Basic Principles on the Role of Lawyers, 8th United Nations Congress on the

Prevention of Crime and the Treatment of Offenders, Principle 9, Havana, Aug. 27–Sept. 7, 1990, U.N.

Doc. A/CONF.144/28/Rev.1 at 118 (1990); available at http://www1.umn.edu/humanrts/instree/i3bprl.htm

[hereinafter UN Basic Principles]; see also

International Bar Association, Standards on the Independence of the Legal Profession, standard 3

(1990), available at http://www.ibanet.org/About_the_IBA/IBA_resolutions.aspx

[hereinafter IBA

Standards on Independence].

(4) IBA Standards on Independence, Standards 2 and 3.

(5) UN Basic Principles, Principle 11.

(6) International Bar Association, Policy Guidelines for Training and Education of the Legal

Profession, Guideline 3 (Nov. 2011), available at http://www.ibanet.org/About_the_IBA/IBA_resolutions.aspx

.

(7) IBA Standards on Independence, Standard 1.

(8) Council of Europe, Recommendation no. R(2000)21 of the Committee of Ministers to Member

States on the freedom of exercise of the profession of lawyer, Principle II(2) (adopted Oct. 25, 2000)

[hereinafter CoE Recommendations].

(9) CoE Recommendations, Principle I(2).

(10) UN Basic Principles, Principle 10; see also CoE Recommendations, Principle II(1). A requirement that a lawyer be a citizen of the country concerned shall not be considered discriminatory.

(11) CoE Recommendations, Principle II(3).


(13) CoE Recommendations, Preamble.



(16) CoE Recommendations, Principle I(3) and (4).

(17) IBA Standards for Independence, Standard 13.

(18) International Bar Association, Commentary on International Principles on Conduct for the Legal

Profession Explanatory Note 1.2 (May 28, 2011), available at http://www.ibanet.org/About_the_IBA/IBA_resolutions.aspx

hereinafter IBA Commentary on

Principles on Conduct].



(21) International Bar Association, International Principles on Conduct for the Legal Profession,

Principle 2 (May 28, 2011), available at http://www.ibanet.org/About_the_IBA/IBA_resolutions.aspx

[hereinafter IBA Principles on Conduct].

(22) CoE Recommendations, Principle III(1); see also UN Basic Principles, Principle 26. The

International Bar Association has developed a Guide for Establishing and Maintaining Complaints and

Discipline Procedures (2007), available at http://www.ibanet.org/About_the_IBA/IBA_resolutions.aspx

.

25

(23) UN Basic Principles, Principles 26–29.

(24) UN Basic Principles, Principle 20; see also IBA Standards on Independence, Standard 11.

(25) A Principles on Conduct, Principle 5.

(26) UN Basic Principles, Principle 13 ; CoE Recommendations, Principle III(3).

(27) IBA Principles on Conduct, Principle 4; CoE Recommendations, Principle III(2).

(28) IBA Principles on Conduct, Principle 7.


(30) IBA Commentary on Principles on Conduct, Explanatory Note 7.2.

(31) IBA Principles on Conduct, Principle 10.

(32) UN Basic Principles, Principle 1; see also EUROPEAN CONVENTION FOR THE

PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS art. 6 (Nov. 4, 1950, as amended by Protocol No. 14, June 1, 2010) [hereinafter ECHR]; INTERNATIONAL COVENANT

ON CIVIL AND POLITICAL RIGHTS art. 14(3)(d) (adopted by the UN General Assembly

Resolution No. 2200A/XXI, Dec. 16, 1966, ratified Jun. 11, 1993) [hereinafter ICCPR].

(33) See ICCPR Article 14(3)(d); ECHR article 6(3)(c); United Nations Body of Principles for the

Protection of All Persons under Any Form of Detention, Principle 17, available at http://www.un.org/documents/ga/res/43/a43r173.htm

[hereinafter UN Principles for the Protection of

Persons under Detention]. Both the ICCPR article 14(3)(d) and the ECHR article 6(3)(c) require legal assistance free of charge where the “interests of justice” so require and also specify that a person charged with a criminal offense has a right to defend him- or herself.


(35)UN Basic Principles, Principle 6.

(36) UN Basic Principles, Principle 8; see also UN Principles for the Protection of Persons under

Detention, Principle 18.

(37) CoE Recommendations, Principle 5.


(39) UN Basic Principles, Principle 13; CoE Recommendations, Principle 3(a) and (c).


(41) See generally ECHR, arts. 2 (right to life), 3 (prohibition of torture), 5 (right to liberty and security), 6 (right to a fair trial), 7 (no punishment without law); ICCPR arts. 6, 9, 10, 14, 15; UN

Principles for the Protection of Persons under Detention.

(42) AMERICAN BAR ASSOCIATION RULE OF LAW INITIATIVE, THE ACCESS TO JUSTICE

TRAINING MANUAL: A GUIDE TO ANALYZING ACCESS TO JUSTICE FOR CIVIL SOCIETY

ORGANIZATIONS 4 (2010); See, e.g. ICCPR art. 2(3): “Each State Party to the present Covenant undertakes […] to ensure that any person whose rights or freedoms […] are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; […] that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; […and] that the competent authorities shall enforce such remedies when granted.”

(43) CoE Recommendations, Principle IV(1).

26

(44) UN Basic Principles, Principles 2, 3, 4; see also CoE Recommendations, Principle IV(3).


(46) International Bar Association Resolution on Legal Aid (1996), available at http://www.ibanet.org/About_the_IBA/IBA_resolutions.aspx

(47) UN Basic Principles, Principles 2, 3, 4; see also CoE Recommendations, Principle IV(3).

(48) CoE Recommendations, Principle IV(2).

(49) International Bar Association, IBA Pro Bono Declaration, Article 6 (2008), available at http://www.ibanet.org/About_the_IBA/IBA_resolutions.aspx

[hereinafter IBA Pro Bono Declaration].

(50) CoE Recommendations, Principle IV(4); IBA Standards on Independence, Standard 16.

(51) UN Basic Principles, Principles 24, 25; CoE Recommendations, Principle 5, 1–3.

(52) IBA Standards for Independence of the Legal Profession, Standard 17.

(53) IBA Standards for Independence of the Legal Profession, Standard 18; see also CoE

Recommendations, Principle V(4).

(54) CoE Recommendations, Principle V*5); see also IBA Standards for Independence of the Legal

Profession, Standard 20.

(55) World Bank, Civil Society Overview: Defining Civil Society, available at http://bit.ly/19ASsKf

(56) See CoE Recommendations, Principle 5(4) for related standards for bar associations; see also IBA

Pro Bono Declaration paragraphs 8, 9 for discussion of how professional associations of lawyers can work with other non-governmental organizations.



(59) IBA Commentary on Principles on Conduct, 2.2.

(60) ECHR art. 6(1); ICCPR art. 14(1).

(61) IBA Commentary on Principles on Conduct 4.2, 3.2, 2.2.


(63) CoE Recommendations, Principle V*5); see also IBA Standards for Independence of the Legal

Profession, Standard 20.

END

27


THE ADVERSARIAL PROCESS AND EQUALITY OF ARMS

UNDER THE EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS

AND FUNDAMENTAL FREEDOMS

By Mirjana Visentin, Mark Segal, and Oksana Tsymbrivska

June 2014

The European Convention for the Protection of Human Rights and Fundamental Freedoms, which entered into force in Ukraine on 9 November 1997, establishes the “Right to a Fair Trial”. According to Article 6:

1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

2) Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3) Everyone charged with a criminal offence has the following minimum rights: a. to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; b. to have adequate time and facilities for the preparation of his defense; c. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; d. to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; e. to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms

(hereinafter “Convention”) focuses primarily on securing the due process of law and ensuring that procedural rights are being respected in practice. Consequently, it does not empower the European Court of Human Rights (hereinafter “Court”) to second guess national courts concerning whether or not a correct decision has been reached (Karalevi č ius v. Lithuania). Further, it does not empower the Court to reconsider issues of fact or breaches of national law (Bernard v. France). This would violate the principle of subsidiarity.

28

The Court tends to take a narrow approach to the definition of adversarial process and the essential requirements therefor. It generally focuses on whether there has been sufficient opportunity at trial to learn about and respond to the claims and evidence presented by the opposing party. In this context, it is clear evidence must be made available to both parties (Ruiz-Mateos v. Spain). This narrow view of the adversarial process respects continental traditions, by not obliging countries to adopt the accusatorial approach more characteristic of common law jurisdictions. As a result, both accusatorial and inquisitorial systems can fully comply with the requirements of Article 6.

Nonetheless, the Court can consider some specific characteristics of inquisitorial systems, such as limitations on the rights of parties to call witnesses, to be a violation of the principle of “fairness”. And issues concerning the adversarial process can overlap with the rights of the defense which are established under Article 6 § 3 (Bricmont v. Belgium). Thus, to a certain extent, the right to a fair trial also incorporates certain aspects of the adversarial process, both in civil and criminal proceedings, including the opportunity to have knowledge of and comment on all evidence which is adduced and all observations which are filed (Ruiz-Mateos v. Spain, para. 63.)

Accordingly, determination of the rights of defendants to an adversarial process in specific cases depends upon:

1.

The nature and origin of the evidence or testimony in question

2.

The significance of the evidence or testimony for the defense

3.

The significance of the evidence or testimony for the prosecution (Georgios Papageorgiou v.

Greece)

4.

The procedures for deciding whether evidence or testimony must be disclosed

5.

Whether the defense has a full and fair opportunity to argue against non-disclosure

6.

The actual conditions imposed upon any partial disclosure or conditional disclosure

7.

Remedies available for correcting or ameliorating problems with conditional disclosure

Generally speaking, it is incumbent upon the defense to show that failure to disclose has caused actual prejudice (A. and others v. the United Kingdom).

Equality of arms

means that all parties to the proceedings have a reasonable opportunity to present their case to the court under conditions which do not place them at a substantial disadvantage vis-à-vis their opponents. This can also be characterized as a requirement to strike a fair balance between the parties (De Haes and Gijsels v. Belgium).

Amongst the key factors which must be considered are the nature of the case and what is at stake between the parties. In this light, basic elements of the equality of arms include:

1.

Procedures during the preliminary investigation (Pishchalnikov v. Russia)

2.

Timely access to case files

3.

Being able to gather and assess evidence

29

4.

Having enough time for the preparations necessary for presenting a case

5.

Being present at public trial and having a chance to be heard

6.

Not facing unreasonable practical obstacles to presenting a case (Dombo Beheer v.

Netherlands)

7.

Procedural equality with respect to timelines for presenting cases (

Wynen v. Belgium

)

8.

The right to present arguments (H. v. Belgium)

9.

The right to be present in court during arguments by opposing parties (Borgers v. Belgium)

10.

The right to present evidence

11.

The right to challenge the evidence of other parties

12.

The equal treatment of witnesses for each side (Luca v. Italy)

13.

The right to present contrary expertise (Bonisch v. Austria)

A number of factors are taken into consideration when reviewing the particular circumstances of a case and applying the principles identified above.

In Jespers v. Belgium, the Court held that the principle of equality of arms read together with Article 6

(3) b obliges prosecuting and investigating authorities to disclose any material in their possession, or to which they could gain access, which may help exonerate the accused or lead to a reduced sentence.

This principle extends to material which might undermine the credibility of a prosecution witness. In

Foucher v. France, the Court held that by denying the defendant (representing himself) access to the case file, and preventing him from making copies of the documents therein, the prosecution prevented him from preparing an adequate defense, and violated the principle of equality of arms read together with Article 6 (3).

The Court found a violation of Article 6 § 1 combined with Article 6 § 3 in criminal proceedings where defense counsel was forced to wait fifteen hours before finally being given a chance to plead his case in the early hours of the morning (Makhfi v. France). Denying a defendant the right to be present at a preliminary hearing held in camera , resulting in a conviction upheld on appeal, was also found to be a violation of the principle of equality of arms (Zhuk v. Ukraine, § 35). It was held to be improper for the national legislature to adopt legislation designed to defeat a claim proceeding through the court system (Stran Greek Refineries v Greece).

The Court has frequently held that it is not empowered to substitute its own view for that of national courts when it comes to the admissibility of evidence. Thus, the Court will not evaluate whether specific kinds of evidence, such as that which is obtained in violation of national law, are admissible.

Consequently, the rules of evidence are principally a matter for national courts (Khan v. the United

Kingdom, § 34, P.G. and J.H. v. the United Kingdom, § 76, Allan v. the United Kingdom, § 42).

Nonetheless, the Court does consider the way in which evidence is treated to be an important factor in deciding whether or not trial proceedings (as a whole) are fair (Van Mechelen and others v. the

Netherlands). Thus, while the admission of unlawfully obtained evidence does not in and of itself violate Article 6, it can create a lack of fairness under the facts of a specific case (Schenk v.

Switzerland). This in effect creates a case-by-case approach.

30

Similarly, the admission of hearsay evidence is not automatically a violation of the right to a fair trial.

However, when there is no opportunity to cross-examine, and the conviction is based mainly on hearsay evidence, the trial may be rendered unfair (Unterpertinger v. Austria).

The disclosure of evidence can be limited where there are sound reasons relating to the administration of justice, even if the evidence is important for the defense (Kurup v. Denmark). A sound decision in this regard may be contingent upon the existence of mechanisms which enable the judge to assess the evidence and decide whether to require disclosure (Rowe and Davis v. the United Kingdom; Fitt v. the

United Kingdom).

On the other hand, evidence obtained through maltreatment

cannot be used in criminal proceedings.

For example, use of statements obtained in violation of Article 3 of the Convention (prohibiting torture and inhumane or degrading treatment) automatically renders proceedings unfair and a breach of Article

6 (El Haski v. Belgium; Gäfgen v. Germany [GC], § 166). This prohibition is reinforced by Article 15 of the United Nations Convention against Torture, which may also be applicable according to Article

53 of the Convention (respecting the protections established by other laws or treaties). Classification of the violations, as either torture or inhumane or degrading treatment, is not relevant. Confessions obtained in violation of the right to legal counsel are also subject to exclusion. Such circumstances are considered particularly problematic when conviction is based solely or primarily on the confession.

Many cases address the issue of adequate time and facilities for preparation of the defense under

Article 6 (3) b. This is a key element of equality of arms, particularly for the defense. The prosecution often enjoys significant procedural advantages as a result of the nature of the investigatory process.

The investigation may be completed and the preparations for trying the accused may be well underway before charges are formally filed and defense counsel is formally retained.

The adequacy of the time allotted for preparing a defense depends on the totality of circumstances of the case. This includes the level of complexity and the stage of the proceedings (Albert and Le Compte v. Belgium). It also includes the volume/quantity of materials which must be handled. Thus, for example, having two weeks to handle and process a 17,000-page file was found to be insufficient in the Grand Chamber judgment in Öcalan v. Turkey.

In order to prepare the defense, counsel should have unrestricted and confidential access to clients held in custody or pre-trial detention. Access must be sufficient for discussing all elements of the case. This is central to the concept of a fair trial (Campbell and Fell v. the United Kingdom). A system which routinely requires prior authorization of the judge or prosecutor prior to legal consultations violates this standard. Authorities managing custodial or detention institutions must ensure that there are adequate facilities for legal visits to take place in confidence and beyond the visual and auditory range of others

(Can v. Italy). When the defense alleges that facilities for its consultations and preparations were not adequate, the judge must decide whether trial can proceed without violating Article 6 (3) b.

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In Öcalan v. Turkey, the Grand Chamber found numerous violations of Articles 6 (3) b and c. The applicant was denied assistance from counsel during questioning under police custody, faced restrictions on the number and length of subsequent consultations with counsel, had been unable to communicate with council beyond the hearing of third parties at any time, and was not given direct access to the case file until a later stage of the proceedings.

The “facilities” which defendants are entitled to under Article 6 (3) b in order to prepare for trial include the right to be acquainted with and analyze the results of investigations and tests carried out before or during the proceedings (Huseyn and Others v. Azerbaijan, § 175; OAO Neftyanaya

Kompaniya Yukos v. Russia, § 538). For detainees, “facilities” may include conditions of detention that make it possible to prepare for trial (read and write) with a reasonable degree of concentration

(Mayzit v. Russia, § 81; Moiseyev v. Russia, § 221). Excessive fatigue on the part of the accused or defense counsel can also be considered a factor (Makhfi v. France, § 40; Barberà, Messegué and

Jabardo v. Spain, § 70). Naturally, “facilities” must be directly related to preparation of the defense

(Padin Gestoso v. Spain (dec.); Mayzit v. Russia, § 79).

Under certain circumstances or occurrences, the defense is entitled to additional time in order to prepare or adjust its position, or lodge a request or appeal (Miminoshvili v. Russia, § 141). Such circumstances or occurrences include changes in the indictment (Pélissier and Sassi v. France [GC], §

62), the introduction of new evidence by the prosecution (G.B. v. France, §§ 60-62), or sudden or significant changes in expert opinion during the course of the trial (G.B. v. France, §§ 69-70).

It is up to the defense to seek adjournment or postponement if it finds that the time allotted for its preparations is insufficient (Campbell and Fell v. the United Kingdom, § 98; Bäckström and

Andersson v. Sweden (dec.); Craxi v. Italy (no. 1), § 72). This requirement may be waived under exceptional circumstances (Goddi v. Italy, § 31), or if there is no basis for seeking additional time under domestic law and practice (Galstyan v. Armenia, § 85). Under certain limited circumstances, the court may be required to adjourn a hearing and provide the defense additional time at its own initiative

(Sadak and Others v. Turkey (no. 1), § 57; Sakhnovskiy v. Russia [GC], §§ 103 and 106).

It may be justifiable to impose certain restrictions on the preparations for defense under exceptional circumstances. This may be the case with extremely dangerous individuals or those charged with serious offenses such as terrorism. However, any interference with the rights of the accused to communicate with counsel and prepare for trial must be “precise and ascertainable”.

Equality of arms also mandates fair treatment of witnesses (no favoritism). Procedures and conditions for presenting witnesses must be the same for the prosecution and defense. Witnesses must be treated equally. Violations occur when a particular witness enjoyed a privileged role in fact

(Bonisch v. Austria, § 32, and, conversely, Brandstetter v. Austria, § 45). Furthermore, national law establishes conditions for admitting testimony. Thus, the judge can refuse to allow a witness to be called if the evidence will not be relevant. It is up to the applicant to establish prejudice from the failure to admit testimony (X v. Switzerland).

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Witnesses are normally required to testify in person or corroborate evidence in court in order to enable the opposition to challenge their veracity. This is an important element of the principle of equality of arms, and the right to defense. Only under exceptional circumstances can the prosecution rely on evidence from witnesses without providing an opportunity to conduct cross-examination.

Entrapment

by the police and the use of agent provocateurs

can result in a violation of Article 6.

Generally speaking, the Court recognizes the rights of authorities to use special investigatory methods, particularly under challenging circumstances such as cases involving organized crime and corruption.

For example, it has held that undercover policing does not automatically compromise the right to a fair trial. However, there are limits. The public interest in fighting crime cannot justify using evidence obtained through police incitement. And the risk of incitement means that there are clear limits to special investigatory procedures (Ramanauskas v. Lithuania [GC], § 51). For example, in Teixeiro de

Castro v. Portugal, where the conviction was based mainly on the testimony of the police officers, the

Court found that the applicant’s criminal capacity was not ascertained in a passive manner, but rather that there was incitement to commit the offense. Aggressive police techniques cannot be used to circumvent the requirements of fairness and equality of arms in a court of law.

The preceding discussion highlights requirements under Article 6 for securing due process of law through adversarial proceedings and the equality of arms. These principles apply to evidence, testimony, conditions faced by the defense (such as timing and the facilities available), and police and investigatory techniques. It is incumbent upon national courts to ensure that the standards established by the Court under the Convention are applied in practice.

END

33

Advocacy, the Adversarial Process, and Judicial Accountability in

“

By Mark Segal and Oksana Tsymbrivska

June 2014

“ SUPPORT TO JUSTICE SECTOR REFORM IN UKRAINE”

ADVOCACY, THE ADVERSARIAL PROCESS,

AND JUDICIAL ACCOUNTABILITY IN PENAL CASES

THE AMERICAN BAR ASSOCIATION RULE OF LAW INITIATIVE

METHODOLOGY

FOR THE ANALYSIS

OF CRIMINAL DEFENSE ADVOCACY

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Advocacy, the Adversarial Process, and Judicial Accountability in

“

By Mark Segal and Oksana Tsymbrivska

June 2014

“ SUPPORT TO JUSTICE SECTOR REFORM IN UKRAINE”

ADVOCACY, THE ADVERSARIAL PROCESS,

AND JUDICIAL ACCOUNTABILITY IN PENAL CASES

THE AMERICAN BAR ASSOCIATION RULE OF LAW INITIATIVE

METHODOLOGY

FOR THE ANALYSIS

OF CRIMINAL DEFENSE ADVOCACY

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