Introduction
Immediately following warm words of welcome from our president Vincent Asselineau, Valentyn Gvodziy, vice president of the Ukrainian National Bar Association, explained how lawyers and a legal system survive in a country affected by war and the imposition of martial law. He described a situation where the courts cannot operate in 10 of 27 regions, and where many courts have themselves been destroyed. In a short space of time, many new laws and procedures have been amended or introduced. Laws of evidence and criminal procedure (in particular those concerning pre-trial detention) have been relaxed, to the detriment of suspects. Criminal trial by video can be imposed by a judge, rather than requiring the defendant to agree. Conflict-specific offences have been introduced, including the crime of collaboration, with legal persons susceptible to liquidation if found guilty. To take into account the practicalities of the ongoing armed conflict, laws concerning the use of weapons have been changed.
In thanking Valentyn for his contribution, Vincent made it clear that the ECBA stands ready to support the Ukrainian people and its lawyers in any way it can.
Keynote speakers
Miroslav Krutina then welcomed our keynote speakers.
Aigars Strupiss, Chief Justice of the Supreme Court of Latvia, addressed the crucial role of defence lawyers in cassational proceedings, as well as the duties on advocates to ensure the smooth and effective running of court proceedings. He saw that one of his main duties was to improve public confidence in the operation of the courts, to be achieved in part through the process of selecting and training judges.
Juris Jansons, ombudsman of Latvia, explained that his role was to promote the recognition of and reliance on fundamental human rights, although not as a direct participant in proceedings. He spoke in particular about the right to property enshrined in article 1 protocol 1 of the ECHR in the context of allegedly criminally acquired property and confiscation.
Aldis Lavins, the chairman of the constitutional court, addressed the role of defence lawyers in protecting fundamental rights – to prevent injustice and misuse of state power. He pinpointed the existence of an independent impartial judiciary, protecting fundamental rights and ensuring public safety, as fundamental to a properly functioning democracy.
Janis Rozenbergs, the president of the Latvian Council of Sworn Advocates, focused on the role of the advocate in criminal proceedings. Although playing a vital role in defending the client and the fair trial, the obligations to the client are balanced by the lawyers’ ethical and professional obligations.
First Panel
The first panel discussion concerned confiscation and seizure of assets in criminal proceedings and was chaired by Arturas Gustauskas.
Kristina Grunte, a prosecutor of the anti-money laundering coordination unit of the general prosecutor’s office in Latvia, explained the Latvian confiscation framework, both conviction and non-conviction based. She described a significant increase in the use of non-conviction based confiscation - something that is becoming increasingly familiar to defence practitioners across Europe.
Latvian lawyer Krista Niklase presented instead of Violetta Zeppa Priedite, who unfortunately could not be present herself, she gave the defence perspective on the issue, describing the client undertaking a series of battles – against the client’s bank, with the Financial Intelligence Unit (which has the power to temporarily freeze an account), in proceedings before the court to seize the property, before finally receiving the investigator’s arguments and evidence and facing confiscation proceedings.
Carla Reyes outlined the Swiss regime for seizing and confiscating criminal assets. Given Switzerland’s key position as custodian of a large part of the world’s wealth, freezing and confiscation is a much used tool for Swiss prosecutors. To improve the efficacy of the freezing regime, Switzerland usually freezes assets suspected to arise from criminal conduct overseas before receipt of a formal mutual legal assistance request.
Sergey Golubok
Sergey Golubok expressed his sympathies, shared by many Russians, with the people of Ukraine. He described the significant changes made to Russian law since the special military operation. Certain countries had been designated as unfriendly, prohibiting and making it a criminal law to conduct transactions with those countries. It had also been made a crime to follow sanctions made overseas, putting many in an impossible situation.
Strange new offences were being introduced on an almost daily basis. Russian criminal lawyers contest everything on behalf of their clients. Colleagues still in Russia continue to do the same, finding innovative and creative solutions for clients. But pressure is being imposed on senior members of the profession. He fears that disbarment of those who speak out is imminent.
Second Panel
After the lunchtime adjournment, Neil Swift chaired the panel on the activities of the ECBA, consisting of the following:
- Alexis Anagnostakis, Human Rights Committee
- Amedeo Barletta, Anti Corruption in Europe
- Rosa van Zijl, EPPO working group
- Elise Martin-Vignerte – the European Arrest Warrant
- Hans van de Wal – Extradition forum
- Miroslav Krutina – Roadmap 2020 / Procedural Safeguards
A guest speaker, Ben Brandon, spoke about the Ukraine Justice Alliance
All members were encouraged to ask not what the ECBA could do for them, but to ask what they could do for the ECBA – the effectiveness of the working groups depends on members volunteering to help.
Third Panel
Vincent Asselineau chaired the third panel, on the European Public Prosecutors Office.
Frederic Baab, the European Prosecutor for France spoke first. In France, the EPPO carries out the function of the investigative judge. The EPPO is also totally independent from the member states and from the European institutions. These features make it revolutionary. Because of its independence, EPPO is able to develop a criminal policy at EU level so as to ensure consistency of approach across all member states. Cases are allocated randomly amongst the 15 permanent chambers of EPPO. Since last June, 500 cases have been opened, representing losses of €5b. In the future, the EPPO will seek to extend its competence, although its focus will remain on serious crime with a transnational dimension. For this, it will need a unanimous decision of the European Council (including those member states who are not part of the EPPO). As this represents a transfer of sovereignty, it is unlikely to receive unanimous support. The most likely area will in environmental crime.
Cecile Soriano is one of 4 European Delegated Prosecutors in France, seconded to the EPPO. EPPO has revolutionary tools – including convergence of interpretation of procedural rights. Information comes to the EPPO through a variety of sources. As is well known, there is no harmonised European criminal procedure. Instead, the investigative tools are those available under national criminal procedural law. But crucially the tools can be used in cross border investigations by EDPs in other jurisdictions. EPPO is treated as one office. The handling EDP can delegate investigative measures to an assisting colleague in another member state. So MLA is not required.
Giulia Guagliardi is an Italian criminal lawyer and president of the European Young Lawyers Association. She identified a number of critical aspects from the defence perspective. Namely, the inequality of arms between EDPs and defence lawyers; the admissibility of evidence gathered in another member state; the vagueness of some criteria and definitions – and the existence of national divergences; the investigations into legal persons; the lack of coordination of legal aid measures; and divergence between jurisdictions of the rights of the victims.
Rosa van Zijl addressed the legality principle of EPPO vs prosecutorial discretion of domestic proceedings. Under the legality principle, in a case where there was sufficient evidence, a case can only be terminated if one of the listed grounds exists. Under the Dutch domestic system, the prosecutor has a discretion not to prosecute a case. The Dutch grounds for discretionary dismissal are wider than under the legality principle. In EPPO’s annual report for 2021, there is reference only to the exceptions under the legality principle. But it’s arguable that a defendant should not be in a worse position under the legality principle of EPPO than they would be under a domestic investigation for the same conduct.
Fourth panel
The final panel of the afternoon was chaired by James MacGuill and dealt with attorney client privilege. Panellists were Dian Brouwer, Jaime Campaner, Rebecca Niblock, and Jaanus Tehver.
Rebecca outlined the history and development of legal professional privilege in English law, starting in the 16th century. At the time the justification was confidentiality, and privilege belonged to the lawyer. In the 19th century the justification evolved into something familiar to what we have today – a protection for the client aligned to the interests of the proper administration of justice.
Dian Brouwer outlined a brief Dutch horror story. The historically developed concept of privilege relates only to hard copy materials. Only one article of the criminal code refers to digital material. It provides that if an investigator covertly seizes data and comes across potentially privileged information, and the prosecutor agrees it is privileged, it is to be destroyed. A procedure for destruction – apparently ringed with guarantees – exists but has not been published and, it appears, is not observed. It has been observed that there is a high likelihood that investigators and prosecutors have routinely accessed, and analysed material covered by privilege. The court recently determined that the procedure supposedly ‘ringed with guarantees’ was not appropriate. It is anticipated that the prosecution will appeal.
Jaime Campaner discussed 3 ideas – emails between inmates and their lawyers can only be intercepted with the permission and the judge and in terrorism cases; subject to the crime fraud exception, communications between lawyer and client are confidential; and intercepted communications have to be reviewed by an investigating judge in real time, but the judge should not review that material. The unintended interception of legal calls is not a basis for stopping telephone tapping.
Jaanus Tehver spoke about attorney client privilege in the digital age. Recent Strasbourg jurisprudence highlights that although the court has found violations of Article 8, there might be a shift of practice that is not favourable to defence rights. The doctrine that the provision of a privileged dataset to the police would be protected may be coming to an end.
A lively debate ensued.
General Assembly
The agenda for the General Assembly was brief. Vania Costa Ramos informed the assembled members that the ECBA would need to incorporate an entity and relocate to another EU jurisdiction.
