The 2023 ECBA Spring Conference opened with the usual Friday reception, this time at the Warsaw Bar Association of Advocates historical venue, where Vincent Asselineau, Chair of the ECBA, welcomed the delegates. The guests also received a warm welcome from Mikolaj Pietrzak, Dean of the Warsaw Bar Council and co-recipient of the 2021 Scott Crosby human rights award, together with the Polish Judge Igor Tuleya, who was a guest at the reception too.
After a joyful evening of reunion, the ECBA members, old and new, guests and speakers, attended the auditorium of the Fine Arts Academy of Warsaw on Saturday. Mikolaj Pietrzak, Dean of the Warsaw Bar Council and ECBA member, set the tone of the conference by reminding us the current populist climate in Europe, the backsliding of human rights and the crisis of the rule of law.
Vincent Asselineau, Chair of the ECBA, recalled the essential work of the ECBA in this context as a direct and key interlocutor of the EU Commission, EU Parliament, Council of Europe and ICC.
He then left the floor to Vânia Costa Ramos who, despite her ankle injury, in few well-chosen words reminded us of our role in upholding the rule of law before introducing the two keynote speakers: Prof Marek Safjan, judge at the CJEU, a specialist of constitutional law and keen interest around constitutional identity and Prof Piotr Hofmański, President of the International Criminal Court [ICC], a specialist of criminal and international law heading the ICC since 2015. The ICC recently took a brave step in the context of the Ukrainian War.
For Prof Hofmański, a Polish native, the support to the rule of law derives from an understanding that any society protects the rights of the individual and seeks for its betterment. In that pursuit criminal law is indispensable. The creation of the ICC in 2002 is the fruit of the necessity to have a mechanism of enforcement to ensure effectiveness of the rule of law at international level when national judicial systems fail. After a brief history of the ICC and after a presentation of the key statistics of ICC’s action, Prof Hofmański called for the attendees to join the list of counsel allowed to practice before the ICC.
Prof Safjan shared his reflections around rule of law by starting with discussing the idea of an EU identity born not from the existence of a constitution but from shared values. There is a trend among MS to attempt to reverse the course of the EU history by replacing solidarity and art. 2 TEU values by populism and national egoism (e.g. Brexit or ruling of the Polish constitutional court). After stating the important place of the legal profession in defending the rule of law by defending the independence of the judiciary Prof Safjan turned to future prospects: use of art.2 TEU as ground for infringement proceedings separate from art 70 infringement proceedings, and call for the civil society to get more involved.
The first panel, chaired by Mikolaj Pietrzak, provided a stark picture of the problem of rule of law faced by the legal profession in their daily practice. Judge Tamasz Matusik, head of investigation of the Hungarian National Judicial Council, detailed the new structure of the Hungarian judiciary and how the government engages in chilling tactics to discourage members of the judiciary fighting for the respect of rule of law. Hope is placed in the upcoming election of the National Judicial Council and implementation of the 2023 judicial reform, adopted following the requests addressed by the EU. Mikolaj Pietrzak noted with concern the similarities with the current issues in Poland.
Judge Dariusz Mazur, Vice President of the Polish independent judges association who faced oppression for supporting the independence of the judiciary, compared the rule of law to oxygen: as long as it exists we don’t notice it but when it starts lacking we feel strangled. Judge Mazur gave a very frank and troubling exposé of the Polish judicial reform and how neo judges subservient to the executive power had replaced most of the independent judges. He encouraged us to check the KOD at rushokd.pl which lists the neo judges by court. The lack of independence of the Polish judiciary was challenged before the CJEU (Celmer) and ECHR. Despite these, the pressure on independent judges increases every day (criminal/disciplinary prosecution opened against judges).
Katarzyna Wiśniewska, a human rights lawyer renowned for her action against violation of the rule of law in Poland completed the panel. After a brief introduction of the Polish justice system’s score on the EU scoreboard (not brilliant) she pointed out the concrete reality of working within a justice system where the Constitutional Court is not independent. Is it still required to refer a violation of rule of law to the Constitutional Court before an application to the ECHR? In Xero Flor -v- Poland (ECHR, 4908/18) the Court found that the appointment of the judge doesn’t satisfy the criteria of a court of law. Other rulings of the ECHR point toward a lack of independence of the Constitutional Court, but no decision on the criminal chamber of the Supreme Court yet.
Q&A
Q: for Poland: How to purge the system from all judges appointed after the reform once measure for independence implemented?
A (judge Mazur): draft process prepared by association of judges. Re-evaluation process to avoid undermining judgment issued by neo judges in order to protect judicial stability.
Q: How can we support Hungarian judges?
A (judge Matusik): Judiciary is very neutral in Hungary. Hope that at the next election the judges will elect the right people.
Q: Which body has disciplinary power over the judiciary in Hungary?
A (judge Matusik): the National Judicial Council elects judges to the disciplinary court. It is very rare to have disciplinary proceedings against judges in Hungary or criminal investigations (all procedure opened have been withdrawn), the executive relies more on chilling effect tactics like smear campaign against judges.
Judge Matusik had a last warning for the delegates: you are not protected in your democracies. Populism can emerge everywhere and now they have blueprints with Hungary and Poland.
Judge Mazur recalled the importance of cohesion and solidarity between the judiciary and advocates. Many Polish judges targeted with disciplinary proceedings found strong support in the advocates who assisted them.
Judge Safjan agreed with the necessity for solidarity among the legal professional. He noted the apparent lack of concern of civil society about questions around the rule of law. He wondered how initiate such change in civil society.
After a timely coffee break, the conference resumed for the second panel; this time focused on human rights.
Alexis Anagnostakis, ECBA advisory member and ECBA Human Right Committee officer, guided enthusiastically a panel of defence lawyers through their presentations about the enforcement of human rights in Poland, UK, Belarus and Norway.
Małgorzata Mączka-Pacholac, Polish defence lawyer, brought to our attention the threat on lawyer-client confidentiality presented by the Polish surveillance law. That specific piece of legislation does not provide for any exception to admissibility of evidence when lawyers are caught by the surveillance. She detailed the various aspects of the surveillance law in Poland and linked it to the ECHR case on that topic to which the ECBA intervened as amicus curiae.
Alaksiej Michalevic, defence lawyer in Belarus and former presidential candidate tortured for his activities, described the tragic situation of lawyers in Belarus. In 2023, 7 lawyers were detained as political prisoners. He reported the ingenious idea of the Minsk bar to bypass the prohibition of pro bono work in Belarus by allowing victims of torture and protesters to obtain legal representation for one symbolic ruble. Since the introduction of discriminatory rules of access to the bar Belarus lost 12% of its lawyers. He concluded with the example of Vitali Braginets who was convicted to 8 years of custody by a trial in camera for support to extremist activities – in this case, defending people in politically motivated cases.
Maria Hessen Jacobsen, Norwegian human right lawyer and member of the HR committee, presented the strategic litigation program developed by the local bar. Norway prisons are renowned for their rehabilitation program but all struggle with HR violations, especially for solitary confinement and strip search. The rules for reparation of such violations are wholly insufficient. There was an impulse to create a wave of civil lawsuits (with the bar as amicus curiae) which was quite successful but expensive cases to bring thus the introduction of strategic litigation. HR violations are argued at the sentencing stage to obtain reduced sentence in lieu of reparation (and monetary compensation).
Ed “the magician of extradition” Grange, Barrister at law in UK, told us about his experience with ChatGPT (not conclusive) and tracing his ancestry (more conclusive) across the history of human rights in UK. Retracing the emergence of human rights in UK with the Magna Carta to the 2023 Bill of Rights which aim at curtailing the effect of ECHR interim measures, he painted a dark portrait of the enforcement and protection of human rights in UK. His conclusion on the grave rollback on the human rights acquis was a tale of caution.
Anna Demenko, Polish defence lawyer, discussed the recent Commission’s proposition on transfer of proceedings. She brieflly reminded us the principle of non bis in idem in Europe and the little opportunities it offers to protect client’s rights. Often, there is no mechanism to challenge the jurisdiction of the court on this basis. This is an issue from the perspective of foreseeability of the applicable law in terms of sentencing for example. She referred to the proposition and compared it to the US system where the principle is not applicable in case of fundamental defect in the 1st case. If we transpose this approach to the current situation in the EU then there is an arguable case that a judgment made by a Polish court would not be recognised.
Q&A
Q: if the UK bill of rights expressly exclude interim measure, how do you reconcile that with constitutional obligation to respect international engagement?
A (Ed Grange): the UK is on a collision course with the ECtHR. He referred to an article published by Philip Leach and Alice Donald (“The UK vs the ECtHR”, Verfassungsblog, 5 May 2023) on that topic.
The final session of the day was chaired by our president, Vincent Asselineau, and concerned war crimes and crimes against humanity in the context of the war in Ukraine.
Our member and friend Valentyn Gvozdiy, Vice President of the Ukrainian National Bar Association (collective receiver of the ECBA Human Rights Award 2022), addressed a hushed audience with his vivid descriptions, and harrowing images, of the international crimes being committed on the territory of Ukraine.
One of the challenges he described is characterising the clearly horrific and unlawful acts appropriately as crimes under international law. As well as crimes of direct and unlawful violence the acts include the deportation of children to Russia, measures aimed at changing children’s national identities in occupied territories, and the removal of Ukrainian books and historical artefacts – all with the apparent aim of erasing Ukrainian history and culture.
Valentyn also described the wilful killing of civilians, their detention, interrogation, torture and ill treatment: bodies discovered with hands and feet tied, shot in the head at short range, execution of prisoners of war.
At the same time, bringing the perpetrators to justice is extremely challenging. There are currently more than 80,000 proceedings concerning violations of the rule of warfare, with hundreds more being added every day. A national IT platform has been set up to receive and record information and evidence. But the number of perpetrators identified was depressingly small.
One question which remains is how perpetrators will be held accountable. Ukraine has not ratified the ICC statute but is considering models for a special tribunal. The US has indicated that it wants to assist.
As a country which honours the Rule of Law, the Ukrainian bar quickly recognised the need for advocates to represent individuals accused of such crimes and uphold their rights. Immediately the bar became an object of hate, with advocates threatened by NGOs, citizens and even lawyers serving in the military.
Valentyn called for the international legal community to confirm their support for the Ukrainian bar to defend those who need to be defended.
The floor was then given to Natacha Ivanovic, a French criminal defence lawyer with an array of ICC experience, who expressed her view that the international community does not have a good response to war crimes. In her view, the Nuremberg trials represented the high point of respect for defence rights. One of her concerns is that victim participation breaks the balance in the proceedings.
The crimes themselves are difficult to prove. In the various legal systems, genocide is always defined in the same way, but is difficult to evidence. There are inconsistent definitions of crimes against humanity, and the same act could be both a war crime or a crime against humanity. War crimes are very complicated, as are crimes of aggression, but the latter only applies to state parties.
However, the nature of the crimes is such that the ICC is by its nature a political court. Her lack of faith in it stemmed from several factors. In an early acquittal judgement, the court made clear that the acquittal did not mean the accused was innocent: notwithstanding the presumption of innocence. She believes that the ICC delivers apparent and selective justice, which becomes injustice.
The final speaker of the day was Marie-Helene Proulx, the President of the ICC Bar Association, but speaking in her individual, rather than her representative, capacity.
Clearly the Ukraine conflict and the crimes arising from it are likely to be a challenge for many years to come. Several jurisdictions may have a role to play: domestic, the ICC, a new tribunal, or the exercise of universal jurisdiction over war crimes.
The ICC has publicly announced that it has issued two arrest warrants in respect of individuals at the very highest levels of command. There may be others, currently confidential. This sends a powerful message, but the prospects of success are unknown.
Like Valentyn, she outlined some of the challenges to hybrid tribunals, which were themselves the subject of hugely political discussions. Whilst evidence was being gathered at super speed by citizens and NGOs alike, that comes with risks: how does a prosecutor evidence the chain of custody, and what about the risk of inconsistency from the multiplicity of evidential accounts. There were concrete challenges for both defence and victims. Victims had no standing until the defendant was before the court. How can they effectively participate without legal aid for counsel?
The defence were often years late on the scene, by which time the prosecution may have gathered mountains of evidence, but in investigations which (understandably) were not necessarily focused on seeking out exculpatory evidence. State cooperation with the defence is very difficult to secure.
She concluded that hybrid tribunals were able to handle so few cases that they would never be a replacement for the domestic Ukrainian jurisdiction.
There was the risk of inconsistency in proceedings. The approach of judges from different jurisdictions will be influenced by their experience in their home jurisdiction. The tribunal itself is likely to be highly political. Although staffed by judges, the process management will be by a political body. There will be an inevitable disparity of resources between prosecution and defence, giving rise to fair trial concerns. Defence counsels for Russian defendants are already experiencing hostile public opinion and threats to their personal security.
Ending on a slightly hopeful note, Marie-Helene pointed out that we have the benefit of hindsight to rectify the flaws of the past in facing the biggest challenge of our generation, but lawyers need to speak loudly and unwaveringly.
Following a proposal from the floor (from James MacGuill) our president wholeheartedly expressed the ECBA’s support for the Ukrainian bar association in providing representation for everyone in need of it, regardless of nationality. He confirmed that the ECBA would adopt a resolution to that effect after the conference.
