CONFERENCE REPORT

Introduction

The ECBA Autumn 2022 conference in Malta started when Vincent Asselineau, Chair of the ECBA, addressed the guests at the Friday reception, together with Stephen Tonna Lowell, Vice Chair of Chamber of Advocates of Malta, Amedeo Barletta, Vice Chair of the ECBA, and Jaime Campaner, ECBA Advisory Board member. Amongst warm welcoming words, guests were surprised to know that the membership in the Maltese bar is not mandatory for all advocates practicing in Malta, and Vincent promised to pray for all the delegates of the conference, since his flight back from Malta was to Lourdes.  

The conference on Saturday began by opening speech of Vincent Asselineau, Chair of the ECBA, who greeted the prominent guests and existing members of the ECBA, and warmly welcomed the numerous new members of our association. 

HR Award 2022

Afterwards Alexis Anagnostakis, ECBA Human Rights Committee Officer, presented the ECBA Human Rights Award, which is named after our late friend and passionate human rights activist Scott Crosby, and which is awarded once a year to distinguished lawyers who have demonstrated outstanding commitment and sacrifice to uphold fundamental values. This year the Human Rights Award went to the Ukrainian National Bar Association (UNBA), represented at the Autumn Conference by Dr. Valentyn Gvozdiy, Vice President of the UNBA, honouring the efforts of Ukrainian lawyers, heroes of the legal profession, for their determination and sacrifice in times of war, to uphold fundamental values and the rule of law in their country during the current impermissible military aggression against Ukraine. The thank you speech of Dr. Valentyn Gvozdiy received standing ovations of the delegates. 

First panel

The first panel of the ECBA Autumn Conference focused on the Maltese Criminal Jurisdiction and money laundering crimes. Hans Van de Wal, ECBA Secretary, chaired the panel which, as it happens in fair trial, had representatives of all actors: judge, prosecutor and defence lawyer. 

Consuelo Scerri Herrera, Judge of the Superior Courts of Malta, Criminal Jurisdiction, introduced legal framework, main actors and the procedure of Maltese anti-money laundering system. 

Francesco Refalo, prosecutor of the Attorney General office of Malta, focused on three different investigative tools on prosecutorial side: monitoring order, investigation order and attachment order. Delegates were assured that attorney-client privilege is protected by the Maltese laws. 

Michael Sciriha, defence lawyer practicing in Malta, expressed his regret that criminal justice is still on the learning curve, and instead of discussing laws it would be better to discuss cases of human beings. In his view, equality of arms is not assured, as person has to save and present documents from the past and prove everything in order to defend the orders of confiscation, but individual hasn’t got apparatus, funds, etc. His comparison that papers are like bikinis (they hide the most important things), cheered the delegates well.

Dr. Jonathan Attard, Maltese Minister of Justice of Malta, closed the panel with his address. In his words, legislator tries to keep the laws up to date and equip prosecutors with the necessary means, which also requires to have competent defence lawyers to protect the rights of the defendants. 

Second panel

The second panel was moderated by Vincent Asselineau, Chair of the ECBA, who introduced the topic of the new binding instrument on the protection of lawyers devised by the Council of Europe, explained the work that has already been done and what will is planned for the near future. It is expected that the text will be finalised and adopted in the 1st half of 2024, then a  long process of ratification of Member States should follow.

Jeroen Soeteman, defence lawyer from the Netherlands presented the interesting findings of a survey performed by the Netherlands Bar - it revealed that more than half of lawyers suffered aggression, more than 40 % suffered threats to stop doing their job (50 % of those coming from clients, 33 % from the other party). The Netherlands Bar offers resilience training, emergency button and 24 hour emergency phone number for those in need. There is a general consensus that the legal privilege is not there anymore when client threatens his lawyer. 

Panelist Nicola Canestrini, defence lawyer from Italy, asked the audience “Who defends the defenders?” and continued the interesting discussion about the increasing threats against defence lawyers, particularly human rights lawyers, who face disbarment, physical attack and, in the worst cases, death. He suggested that 24th of January should be remembered as the international day of endangered lawyers. 

Third panel

Rebecca Niblock, Vice Chair of the ECBA, chaired the next panel discussing the European Criminal Bar Association Statement on Mutual Recognition of Extradition Decisions, together with expert panellists William Julié, defence lawyer from France, Vânia Costa Ramos, Vice Chair of the ECBA, and Jago Russell, defence lawyer from United Kingdom.

William Julié explained how the idea of mutual recognition of extradition decisions came to him, with clients having extradition problems in international cross border cases: the court decision of one EU Member State not to extradite is not sufficient for a person to travel to another EU Member State and be safe (i.e. to enjoy the power of decision), and there are no instruments to force a country to withdraw the red notice.

Vania Costa Ramos summarised that the goal of ECBA statement on mutual recognition of extradition decisions is that those decisions to refuse extradition for breach of fundamental rights would be equally applicable in all EU.

Jago Russell spoke about impact of an extradition refusal to Interpol notices - you will not get the red notice removed if the extradition was refused.

He explained that introducing information in the Interpol system is pretty easy, and getting information out is practically impossible. Also, negative decision (on removal of red notice) gets into the hands of issuing state, and might be then used against the client for extradition proceedings, thus engaging with Interpol is a dangerous encounter.  

Fourth panel

Fourth panel on the protection of EU Financial Interests of the EU and the role of EPPO was chaired by Amedeo Barletta, Vice Chair of the ECBA. The distinguished discussants in the panel were Maltese European Prosecutor Yvonne Farrugia, Olivia Ewenike, defence lawyer from Germany, and Mihai Morar, defence lawyer from Romania.

Amedeo Barletta raised important topics about the functioning of the European Public Prosecutors Office, getting the access to the files, determining applicable law, language of the proceedings.

Prosecutor Yvonne Farrugia spoke about the legal framework and operation of EPPO: this year EPPO received more than 4000 reports on criminal activity and started over 100 investigations. In her view, EPPO operates in a much faster manner than national prosecutors between Member States. EPPO uses case management system, cases are assigned randomly, assuring that the case would not be assigned to the prosecutor from the Member State, from which the request came. She expressed an opinion that prosecutors must respect the highest procedural standards, including those of the defence.

Olivia Ewenike presented the case she is currently working with. Although 70 mln Eur fiscal damage was supposedly done to the budget of another EU Member State, Germany took over the case despite the fact that its interest fell into only 0,22 % of total fiscal damage. She indicated the main procedural problems - absence of direct access to the Permanent Chamber of EPPO, no transparency regarding the composition of it, no direct response from Permanent Chamber (as only the European Delegated Prosecutor responds), no hearing on the decision of the Permanent Chamber, complete lack of transparency regarding decisions to initiate pre-trial investigation and allocation of competence.

Mihai Morar further elaborated on the procedural problems, he suggested that in order to allow Permanent Chamber to monitor and give instruction - they need to allow lawyers to communicate directly. The lawyers, being involved, could address the matter and present a different point of view, assisting the Permanent Chamber while making the decisions on the crossroads of the case. In his opinion, all this would not fix the structural problems of EPPO, but lawyers could provide feedback and information on various questions. 

Fifth panel

Miroslav Krutina, Vice Chair of the ECBA, moderated the fifth panel discussion on “Judicial Cooperation and Procedural Safeguards: The way ahead”, and as he put it - the list of problems never ends.

He was joined by Peter McNamee, Head of Public Affairs and Senior Legal Advisor from the CCBE, Prof Dr Holger Matt, former Chair of the ECBA and defence lawyer from Germany, Drs Ondrej Laciak, Chair of the Criminal Law Committee of the CCBE and defence lawyer from Slovakia, and Amedeo Barletta, Vice Chair of the ECBA, and defence lawyer from Italy.

Amedeo Barletta presented the current status of the initiative regarding conditions of detention (starting from the non-paper, the initiative is now close to status of recommendation, and from there it is even expected to achieve the status of directive).

Ondrej Laciak and Peter Mc Namee paid attention to the political activity, as media support is very important to politicians, spoke about aim and activities of CCBE: procedural safeguards (evaluation of current, looking at future), minimum rules for the mutual admissibility of evidence, pre-trial detention, transfer of proceedings, surveillance, artificial intelligence (as requiring extensive safeguards, electronic equality of arms), anti-money laundering, sanctions - and all this in the context of ongoing war in Europe.

Holger Matt focused his intervention on three messages: idea of roadmap agenda (as a step-by-step approach), legal privileges (professional and private, broad contempt throughout Europe, the necessity to create minimum standards) and state pressure on the lawyers (surveillance, seizure of confidential documents, contempt of our professional privileges). He finished his speech optimistically and assured that our efforts - even if they will give results in 5 or 15 years - will be successful.

Sixth panel

The last panel was focused on “What is the state of play of the EU-UK judicial cooperation?” 

Stefan Hyman, defence lawyer from United Kingdom, and Anna Oehmichen, defence lawyer from Germany, analysed the situation, and the panel was moderated by Jaime Campaner, ECBA Advisory Board member, defence attorney from Spain. Experts agreed that a new scenario opened new field of work to European lawyers, and complexity of the Trade and Cooperation Agreement significantly hindered prosecution work.

Anna Oemichen shared her point of view from the outside of UK perspective. In her words, pre-Trade and Cooperation Agreement (TCA) situation saw how Charter of Fundamental Rights seized to be applicable, conditionality of the TCA aggravated its application and there was uncertainty on judicial bodies with jurisdiction over TCA. Post-TCA resulted in dropping in number of UK extradition requests and European extradition requests to UK, UK wants to give Government the power to override ECHR decisions, and Specialised Committee for Law Enforcement and Judicial Cooperation meets only once a year and seems to clog the proceedings significantly.

Stefan Hyman focused on the situation in the United Kingdom - UK was never the most enthusiastic Member State to implement European instruments, and after Brexit UK lost access to EU databases. While surrender from the UK largely goes as normal, surrender to the UK poses a big difference (due to nationality bar, lack of data on surrender refusals, difficulty of transfer of evidence from UK), after Brexit European Arrest Warrants are being treated just as any other Arrest Warrants. 

General Assembly

The Conference closed with the General Assembly of the ECBA UK, followed by the General Assembly of ECBA The Netherlands. After unanimous decisions, Vincent Asselineau, Chair of the ECBA, along with all the Members of the ECBA Executive Committee (Amedeo Barletta, Vânia Costa Ramos, Miroslav Krutina, Rebecca Niblock, Neil Swift and Hans van de Wal, and Dian Brouwer as new member Executive Committee of ECBA The Netherlands, in quality of Vice Treasurer) announced the relocation of ECBA from UK jurisdiction to the Netherlands.

It was also announced that our next Spring conference will take place in Warsaw on 5 and 6 May, with the support of the Warsaw Bar, whose Dean, Mikolaj Pietrzak, is a very appreciated ECBA member.