ECBA Conference 2001, The Hague, The Netherlands

18 - 19 May 2001

Theme: "European Criminal Defence - Obligations and Opportunities"

REPORT OF THE 5TH ANNUAL ECBA CONFERENCE

The Hague, The Netherlands

On 18 and 19 May 2001, a little fewer than seventy criminal lawyers from some twelve countries assembled in the Peace Palace in The Hague for the annual conference of the European Criminal Bar Association. Besides the exchange of national developments that are topical for their practice, important subjects were discussed, such as the threats that the draft amendment to the European directive on money laundering poses for the legal profession. Moreover, attention was paid to the European joint office of national Prosecutors, confiscation of assets and extradition. 

Prof. Mischa Wladimiroff, Vice-president ECBA

Introduction

Since the founding of the association, this is the fifth time that the members of the European Criminal Bar Association (ECBA) have come together in plenary, this time in the Peace Palace in The Hague. In the first years, the ECBA held its meetings in the building of the European Human Rights Committee in Strasbourg. Next in Rome, in the building where in 1950 the European Human Rights Treaty and in 1998 the ICC Treaty were signed and last year in Berlin, in the building of the former Volksgerichtshof, in the hall where, at the time, under the leadership of the notorious judge Freisler, the Nazi show trials were held. This year, the Association has succeeded in having the conference held in the Academy building of the Peace Palace. Criminal lawyers from most of the Western European countries, but also from Eastern Europe, attended the conference.

The ECBA was founded in London in 1996 with a view to creating a European forum for criminal law lawyers, practising in the states within the Council of Europe. Relatively quickly after that, the founding board was extended to become a real European board, composed of lawyers from the United Kingdom, Germany, the Netherlands, Luxemburg, Iceland, Greece, Latvia and Italy. The Association has in view to widen the horizon of criminal lawyers through mutual exchange of knowledge and aims at advancing the mutual consultations about European developments that are of importance to criminal lawyers. The ECBA is preparing to become the counterpart of Eurojust, the European co-ordination bureau of the national judicial bodies. The official language within the Association is English.

The first day

Prior to the conference, those interested were guided through the Peace Palace by its librarian, Arthur Eijffinger, not just in the well-known public places, such as the large session hall and the hall for the permanent representatives, but also in the specific work places, such as the chambers, meeting rooms and the library the highlight of which are the archives of the Nuremberg Tribunal. The conference participants were welcomed at the official start by a prominent representative of the bar of the hosting country Harro Knijff; deacon of the Bar at the Supreme Court of the Netherlands. Knijff put in mind that, 100 years earlier, lawyers from all the civilised countries in the world had also assembled at the same place in The Hague. That meeting, and later Hague conferences,
led to a system of global treaties and the Peace Palace, the place of establishment of the so-called world court, first the Permanent Court of International Justice and, after World War II, the International Court of Justice. The Hague is the cradle of international humanitarian law, which, since the Nuremberg and Tokyo trials, has very much thrived, especially due to the Yugoslav Tribunal that is also taking p/ace in The Hague. The Hague has developed into the legal capital of the world, now that also the Permanent Court of Arbitration has been established here, the (permanent) Hague Conference for Private International Law, the US-Iranian Claim Court, the UN Organisation for the Prohibition of Chemical Weapons and, within a few years, also the International Criminal Court. The chairman, Rock Tansey, Q.C. subsequently opened the conference with an inspired argument about the dangers threatening the present-day criminal legal profession.

Next, under the leadership of Prof. Guy Stessens (lawyer in Antwerp) and Alan Bruce Beverly (European Committee), the conference went into the question whether the proposals to amendment the European Directive on money laundering undermine the professional secrecy and the privilege of non-disclosure of the legal profession. Stessens outlined the history of the guidelines and discussed the proposals. The aim is to oblige lawyers to report indications that clients commit money laundering practices, be that the duty to report will not apply when the lawyer serves the interests of his client in the framework of proceedings or advises in this matter. In all the other cases and particularly for consultation activities, the European Committee wants to create a duty to report. Subsequently, Stessens compared this duty to report with the deontology of the profession. Bruce Beverly discussed the history of the proposals and described the present state of affairs. He especially emphasised the intentions of the committee and tried to add fuel to the fire by pointing out that the core business or the lawyer, trial assistance, stays out of range. Both presentations led to a fierce discussion, in which it became immediately apparent that there was a clear communis opinio among the conference participants about the impossibility of a duty to report because of its incompatibility with proper practice of the profession. It also appeared that the prevailing national legislation shows quite some differences with respect to the permissibility of the involvement of lawyers in financial transactions, including the fees. A lawyer from Greece spoke in favour of a better distinction between the services of a lawyer and those of other professional groups, because the lack of that distinction seems to be the main reason not to exclude lawyers from the duty to report.

The second lecture was given by Bjorn Blomquist, chairman of Eurojust, the co-ordination bureau in Brussels for national justice of the member states of the Council of Europe. This bureau was established only recently and still functions in an embryonic stage. The purpose of the bureau is to improve the implementation of the system of mutual assistance in criminal matters in Europe. It is the intention that, in the end, it will exercise a kind of supervision of the execution (speed and quality) of requests for assistance, but in the first instance it will function as an intermediary between the judicial bodies of the member states. Eurojust may become the judicial complement of Europol, all the member states will delegate a prosecutor to Eurojust. Lawyers from the Benelux and Germany wondered if Eurojust is the gate to a European Prosecution Office in the framework of the plans for a corpus Juris. Blomquist had to remain silent to this question; the matter was politically too sensitive to discuss this subject in public. As a result, this subject runned the risk of ending in a vacuum, if Rock Tansey has not pointed out that the board is making preparations to open a co-ordination bureau in Brussels too. This led to a vivid discussion about how this should be. We will hear of it, as soon as a good location has been found.

The last subject of the first day was the presentation of the national reports of topical developments in various jurisdictions. As usual, these reports yielded a range of subjects of a very diverse nature. I shall mention a few. In Latvia, criminal lawyers still have problems in giving form to the independent practice of their profession and the implementation of the demands human rights treaties make on the national legislation. The presumption of innocence, for example, is hardly taken seriously. In this respect we could reassure the speaker; in Western Europe this is not without problems either. The reporter from France, for instance, pointed out that in France recently legislation came about that intends to reinforce the presumption of innocence in the law of criminal procedure. So far, the emphasis has been too much on obtaining a confession and in this respect the reporter pointed to the abolished rule that the lawyer has only once very short access to his arrested client. The reporter from Greece pointed to the problem that, in his country , the law intends well, but that in practice the police and the judicial authorities often do not take the slightest notice of the rules. The judiciary does not anticipate this sufficiently and only reacts to too conspicuous violations. With regard to England and Wales it was reported that large changes are about to take place, because both the system of legal aid (barristers and solicitors) and the right to a jury trial are under debate. A separate subject is the problematic relationship between the media and criminal cases in Britain. Finally, I mention the discussion in Austria whether the Public Prosecutor should not be more independent of the Minister of Justice. That discussion we also know in the Netherlands, but so far we have been spared the worries of a Minister of Justice who consistently instructs to prosecute alleged insults from fellow party members, such as the notorious Jorg Haider, and those from others not.

The day ended with a dinner and a guest speaker. It was planned for the main prosecutor of the Yugoslav Tribunal, Carla del Ponte, to speak, but, due to an unexpected stay in Belgrade, she was unable to come. In her place, Graham Blewitt, her deputy, gave a very entertaining lecture about the activities of the Tribunal and related also to the role of the lawyers there. For most of the conference participants this was the first time that they received an inside in the new supranational criminal law and Blewitt did therefore not refrain from calling on the participants to get involved in this new part of criminal law. I remark that a number of members of the ECBA already deal with criminal cases before the Yugoslav Tribunal or the Rwanda Tribunal, respectively.

The second day

While on the first day usually issues are dealt with that lead to discussions, the second day is especially meant to give the conference participants an opportunity to go deeper into specialised subjects or to get acquainted with special cases or specific aspects of other legal systems. Han Jahae (the Netherlands), for example, discussed the subject of the European Treaty for the Mutual Recognition of Criminal Judgements. In a very wittily presented contribution, Jahae took us through the system of the treaty and discussed its consequences. Thus he pointed out that this treaty would greatly affect the extradition treaties and the legal aid treaties. An interesting point was his analysis of the difficulties, such as the question to which extent, due to the treaty, the law of evidence of one jurisdiction will infiltrate into other jurisdictions. This subject will certainly be discussed another time, if only because at this moment by far not all the consequences can be foreseen.

The second speaker, Rudie Fortson (UK) lectured about the system of confiscation of assets in England and Wales and the deviating system in Scotland. It was interesting to hear how the two systems display differences with between themselves, which have, among other things, to do with the differences in the two legal systems. Fortson is an expert in his field and, based on statistics, he demonstrated that, despite the differences in the system, the results are nevertheless comparable. For some it was a surprise that in Britain the opinion is held that the instrument of asset stripping is not applied sufficiently yet. That applied especially to those, in whose countries such legislation was only introduced recently. In some jurisdictions, such as Eastern Europe, there are only plans to introduce the enactment of confiscation of the proceeds of crimes. For me, Fortson's lecture had the sound of recognition, for also in our country it is said that not enough is done about stripping criminals of illegal proceeds, although the application in Britain seemed to me more draconian than our system.

The morning was concluded with a lecture about the German extradition practice by Holger Malt and Kai Hart-Hoenig, both from Germany. In their contribution, not only was an explanation given of the rather complicated legislation in this field in the federal system of Germany, but also of how this law is in comparison with other systems, such as of common law countries. The most interesting part was, in my opinion, their discussion of the jurisprudence, based on a large number of cases and, particularly, the relationship to international judicial bodies, such as the Yugoslav Tribunal. The standard casus, the Tadic case, I know only too well. A classical problem is the extradition of a subject of one's own country. The international trend is not to exclude the own subject from extradition, but in Germany that did not go smoothly.

After this rather technical lecture, in the afternoon, we were pleasantly entertained by Clive Nichols Q.C (UK), who at the time was involved in the Pinochet case as lead counsel. In a typically English dry manner Nichols told us very eloquently of proceedings that were following one another as a result of the requests for legal aid. This did not just concern the request of the well-known Spanish examining magistrate Garzon, but also the requests of other states. It was new for me that essentially three, instead of two, cases played in the House of Lords. What Nichols told about the background of the reason for the last decision was particularly interesting: the involvement of one of the Law Lords in Amnesty International and the judicial vicissitudes that were connected with the question if a new consideration could be possible. The Pinochet case is not just of importance to international law, but also other implications of it are of importance. I mention two. A new development in extradition law is that the admissibility can not just be tested (as usual) based on the law at the time of the request, but also on the basis of the law at the time of the conduct. Furthermore, the considerations are of importance on the basis of which the decision was taken that one and the same body -without nova -may decide another time in the same case.

The last subject was a lecture about criminal law of the Russian Federation. Unfortunately, the intended speaker, Victor Vereshetin, judge at the International Court of Justice, was unable to come and give his lecture. Fortunately, the organisation had succeeded in trapping Dr. van der Berg of Leiden University and he discussed the influence of the constitutional law of the Federation on criminal law. This was for most of the participants (except perhaps for the German participants because of the role that the Bundes Verfassungsgericht plays in their system) a surprising line of approach. The criminal law system dates back as long as to the sixties, the Soviet period, and has not been essentially adapted since. The Russians have solved the problems associated with it, not in the least by the ratification of the European Convention on Human Rights, by including in the constitution that the safeguards and rights of the citizens as laid down in the constitution and in treaties, international declarations and customary law, are directly applicable to the lower legislation. This system means that criminal law is de jure supplemented with (international) public law. It reminded me strongly of the situation, which was only ended here in the Netherlands at the end of the previous century, that the modern law of criminal procedure was, as it were, read into our military law of criminal procedure that dates from 1813.

The conference ended with a discussion of free subjects and, after a final word by conference chairman Rock Tansey, we were informed that next year the conference may be held in Greece.