The ECBA Autumn conference on “Threads to the independence of the defence lawyers” was held in the warm climate of the Cyprus capital Nicosia (Lefkosia). The Hilton Park Hotel was the pleasant accommodation facility for us and also the venue for the Friday reception. The meeting was opened by Mr. Holger Matt, the President of the ECBA, and Mr. Georgios Papantoniou, President of the Nicosia Bar Association, who gave the welcome speech.

Opening the conference
The conference itself was held in the University of Nicosia.  It was started with the presentation of Mr. Mauro Miranda from EC Criminal Justice Unit. Mr Miranda introduced to the audience the Draft Directive on access to a lawyer, as the combination of measure C (part) and measure D of The Procedural Rights Roadmap. Part of measure C on Legal aid was excluded from the draft as additional preparatory work is to be done. Access to a lawyer shall be ensured for 1. any person suspected, accused or under EAW, and  2. as soon as possible (at the latest before questioning of the person, as soon as the deprivation of liberty of the person is applied or as soon as the lawyer is entitled or obliged to be present under the national law at any evidence-gathering stage) with no or minimal derogations. The waiver of the right to a lawyer might be given by a capable person freely and unequivocally after he has been fully informed of the consequences.  The presentation included the issue of remedies for the breach of a person’s right to a lawyer. Mr. Holger Matt in his response referred to the ECBA statement.

Panel discussions
1. Panel discussion on differences in practices.
There were contributions from several panel speakers. The discussion was opened by the speech of Mrs. Elena Zacharidou, Senior Counsel of the Republic of Cyprus, on Rights of Suspects in Cyprus. She referred to the Cyprian Constitution (esp art. 11 and 35), judicial decisions (Police v Andreas Georgiades (1982) 2 C.L.R. 33 - only evidence legally collected is admissible; The Republic v. Achillea Iakovou and Mariou Michael - Assize Court – case no. 8322/2008 and Limassol Police Director v. Lofty Samir, Lofty Imrahim and Albert Kamal Gabra Awad - Assize Court – case no. 6993/2009 – on access to a lawyer; Panovits v Cyprus - application no. 4268/04 Judgment Strasbourg 11 December 2008 on the right of the arrested person to be comprehensively informed on procedural rights; and others) and to legal provisions (Criminal Procedure Law, Rights of Persons under Arrest and Detention Law (N. 163(I)/2005).

The next speaker, Mr. Ondrej Laciak, Attorney and a Vice Dean on Faculty of Law, University of Comenius in Bratislava, Slovakia, listed the rights of suspect provided by the Slovakian legal system. Mr. Laciak described the system of the Criminal Procedure Code and explained the rights of the suspect/accused in detail.
The accused has primarily the right to express his opinion on all facts he is accused of, specify circumstances, propose, submit and gather evidence in support of his case, remain silent, instruct a defence counsel of his own choice and consult with him, seek, legal aid if for financial reasons he cannot retain his own defence counsel, put forward proposals, applications, motions and petitions and bring appeals, request the prosecutor to examine the course of action taken by the police, review the file and make transcripts, notes and copies thereof, obtain disclosure of the file, and propose any relevant information to be added in the course of the investigation, have the written indictment served on him, be present at the main hearing in court and in open session, examine witnesses he proposes to hear in the trial, make a closing speech at the trial, and to have the last word at the trial, and have access to an interpreter and translator if he does not have command of the language in which the proceedings are conducted.

Dian Brouwer, Attorney, Netherlands
Mr. Brouwer has sent us a short summary of his presentation: In the Netherlands, we have never had the right for an attorney to be present during police interviews. The first moment an arrested person could consult with counsel was more than six hours after his arrest. The Salduz-case led to the right to consult with counsel before the first police interview. However, presence of a lawyer during questioning is still being hotly debated. A pilot-programme regarding capital offences allowed counsel into the interrogation room, but strictly as observers. We can see the Dutch government manoeuvring in the European arena, to keep the role of the attorney as limited as possible, if he must be allowed to be present during police interrogation.

2. The second panel on Rights of Lawyers
Hans van der Wal, defence lawyer, Belgium, described links to the profession of the criminal defence lawyer caused by the “Special Intelligence Act” enacted by February  4th, 2010. This Acts grants the Belgian State Security the right to search the offices of lawyers even without a prior communication with the Bar authorities, and to examine any communication in the office, files, hard discs etc.  These may be checked, read or even taken away. Hans warns that these powers deserve more attention by us.

Achilles Emilianides, Cyprus
Re-Evaluation of the Law of Contempt by Advocates in light of recent Cypriot Jurisprudence
Mr. Emilianides explains that, under the latest jurisprudence, contempt committed by a lawyer defending a client before the court shall be considered as a disciplinary offence and as such be dealt with through the Bar Association’s disciplinary proceedings and not via the court.

Mikolaj Pietrzak, Poland
Independence of the lawyer, Belarus example
The Belarusian political opposition is facing persecution, charges  and arrests. Some lawyers agreed to defend opposition members. The reaction of state administration was the following: The Belarusian Ministry of Justice handed down orders on how the lawyers defending opposition members were to be dealt with by the lawyers' collegia (Bar disciplinary authorities).  This led to multiple absurd disciplinary charges specifically against those lawyers and in very many cases, disbarment (the loss of their lawyer's license to practice). Disciplinary trials against many of these lawyers and in some cases additional criminal charges are still being pursued. The right to defence is obviously compromised if lawyers cannot feel safe in defending against the state (which is always on the prosecutorial side), especially in the situation of Belarus where the Bar association is not independent on state.

3. “Mr. Peter Engels, Attorney, Belgium, hosted a panel comprising Jorgen van Laer, Neil Swift and Bertil Dahl entitled ‘Money laundering and the legal duties of lawyers’.  The panel considered three topics from the perspective on the Belgian, English and Swedish systems, to see how obligations created by the same EU directive were approached in markedly different ways.  The topic provoked a lively debate both on the panel and with the audience, with many ECBA members sharing the experiences of their own legal systems.” (Neil Swift)

Jorgen van Lear, lawyer of Studio Legalen Advocaten, Antwerp, Belgium presented reporting obligations of the Belgian lawyers, and how to deal with these obligations to “sleep well at night”.  Lawyers have to take adequate measures to identify clients by official documents and inform the chairman of the Bar to decide whether to report to Belgian Financial Intelligence Processing Unit (CTIF-CFI) or not. Any lawyer who makes a report in good faith has immunity from criminal, civil and disciplinary prosecution. The above mentioned only related to transactions of 10.000,-EUR or more regarding buying and selling of real property or business entities;  managing of client money, securities or other assets;  opening or management of banks, savings or securities accounts; organization of contributions necessary for the creation, operation or management of companies; creation, operation or management of trusts, companies, fiduciaries or similar structures; and in addition making a financial or real estate transaction for and in the name of their clients.

4. The last panel presided over by Miroslav Krutina, Attorney, Czech Republic, consisted  of four contributions about the recent developments and proposed reforms affecting the legal profession in the European Union. We heard Caroline Day, United Kingdom, Ricos Erotocritou, Cyprus, Gustavo Lopez-Muñoz y Larraz, Spain, and Marion Isobel, OSI (Hungary). The report from Hungary in particular surprised many of us because the information given to us shows that the new legislation on rights of arrested persons seems to be in serious contravention of ECHR provisions and judicial practice in Hungary.

A short report on EU criminal defence legislation and closing remarks to the conference were given by our president Mr. Holger Matt. 

Report by Miroslav Krutina, Attorney, Czech Republic