On Friday 6 October 2023, the Autumn Conference in Sofia started with a reception at the Concert Hall of the Central Military Club, a beautiful and historical location. Over a hundred delegates had the opportunity to meet new colleagues and catch up with old friends. Vincent Asselineau, chair of the ECBA, welcomed everyone warmly as ever. The speech of the Chairman of the Supreme Bar Council of Bulgaria, Adv. Dr. Ivaylo Dermendjiev, made all delegates feel very welcome in Bulgaria.
7 October 2023
The next morning, 7 October 2023, the conference proceeded in the conference hall of the Intercontinental Hotel.
After a short introduction by Vincent Asselineau, the floor was given once more to Dr. Ivaylo Dermendjiev, who gave some insight on the practice of criminal defence lawyers in Bulgaria.
In Bulgaria, criminal law is not widely practiced. There is no official statistics, but out of 14,000 lawyers in this country, those practicing criminal law are fewer than 500. In comparison, 500 out of 6,000 lawyers in Rome practice criminal law, which share is similar in other EU Member States. The work of a criminal lawyer is not so attractive because it is harder than that of trade and civil lawyers. Also, a criminal lawyer works with people’s fates, while a civil lawyer deals with their money, Dermendzhiev said.
The language barrier also leads to problems related to cross-border disputes. There are simply not enough good criminal lawyers who also speak foreign languages.
The Bulgarian News Agency reported on the ECBA conference being hosted in Sofia:
“ECBA Chairman Vincent Asselineau told BTA that Bulgaria is extremely important for the ECBA in that the country is well-situated geopolitically while being poorly represented in Europe in the field of criminal law. In his words, they want to get to know their colleagues here so that Bulgarian criminal lawyers can become visible in the whole of Europe. The ECBA, which is a link between European countries, the European Commission and the European Parliament, wants to create contacts and structures in Bulgaria, Asselineau added.”
Then Alexis Anagnostakis, officer of the ECBA Human Rights Committee announced that the Scott Crosby Human Rights Award 2023 will be handed out during the Spring conference in Brussels. The original plan was to do so in Sofia, but the recipients were not able to make it to the conference. Alexis Anagnostakis informed the ECBA about the great and important work of both soon to be award winners. Francoise Tulkens, former Judge and Vice-President of the ECHR and Nancy Hollander, who is a defence lawyer in the US. She is a renowned and fearless lawyer, also defending prisoners in Guantanamo Bay. In 2021 a movie has been made about one of her cases, called ‘The Mauritanian’. The movie depicts a Guantanamo Bay prisoner who had been sentenced to death but was released after years of Hollanders’ persistent work.
Alexis furthermore stressed that both award winners could and should be role models for other women in the professional field of law. As women historically have a marginalized role, it is important to see that these two women have been able to make their way in this masculine dominated field.
These women have shattered the glass ceilings and should be an inspiration for all of us to dream big and aim high.
Panel 1: Sanctions - implementation, enforcement, challenges
Chair: Rebecca Niblock, ECBA Vice Chair, UK
Panel:
- Amélie Beauchemin, defence lawyer, France
- Anna Bradshaw, defence lawyer, UK
- Maya Ivanova, defence lawyer, Bulgaria
- Violetta Zeppa-Priedite, defence lawyer, Latvia
The Chair firstly stressed that this is a controversial topic and requested the audience not to post any tweets or posts about the discussion. The panelists face criticism when assisting listed clients, especially when country-based sanctions apply, and especially in the case of a current conflict. Many of these clients are not even accused of committing an offence but are simply based in the wrong country.
The listing decisions are political. Sometimes arbitrary. The evidence is mostly based on public sources, which are sometimes anonymous. Think about tabloids or Wikipedia. The quality of the evidence can be very poor but is being considered sufficient in times of war. Although the evidence is thin as it is based on media articles, the evidence could be sufficient to target someone and get this person on the list.
If a lawyer succeeds in getting someone delisted, for example because the reason for being listed is not an actual criterion provided for in the sanctions, this criterion may be included in the amended sanctions shortly after this positive decision, and the person will be listed again. This is frustrating for lawyers who engage in delisting procedures.
Sanctions are an important and powerful tool but include a huge infringement of human rights as well. The panelists observe that sanctions are sometimes used as an alternative to prosecution, probably because it is much easier to impose sanctions than to initiate a successful prosecution.
In Bulgaria, banks and institutions treat sanctions very seriously. They wish to avoid the potential risk sanctioned persons impose, including the European Commission's and Bulgarian National Bank's fines for failure to observe and comply with the sanction regimes. This leads to banks refusing any kind of transactions by sanctioned Russian nationals. However, non-sanctioned Russian nationals experience difficulties as well, even if they are against Putin's regime, because they are considered high-risk clients and must present more documents and undergo more complex procedures to prove the origin of their money.
In this sense, sanctions are self-enforcing: sanctions enforce themselves because the financial institutions are so risk averse.
In some jurisdictions, lawyers may face financial problems when assisting sanctioned persons. A realistic problem would be that lawyers cannot take on these cases anymore. If that happens these cases will not make it to the courtroom anymore. If lawyers cease to take on these types of cases, then the cases will no longer be brought before the court, which leads to a lack of control over the legislative and executive powers, who already have a lot of influence when it comes to sanctions. If judicial control over sanctions or listing decisions ceases to exist, harm is done to the separation of powers.
Panel 2: Anti-corruption legislation in Europe and Fundamental Rights
Chair: Amedeo Barletta, ECBA Vice Chair, Italy
Panel:
- Vladimir Hrle, ECBA Anti-Corruption in Europe Working Group Co-Chair, Serbia
- Danielle Goudriaan, defence lawyer and former EPPO Prosecutor, The Netherlands
- Hristo Kutiev, defence lawyer, Bulgaria
- Juan Palomino, defence lawyer, Spain
Amedeo Barletta explained in his introduction that the ECBA has made a statement on the new proposed Directive on Combating Corruption. The ECBA focused on the need to preserve procedural safeguards. Vladimir Hrle clarified that the parts about the procedural safeguards are vague and in the recitals and not in the text itself. The mere minimum should be that it is put in the main body of the text. The commission has not been consistentin this regard. They copied the text from the United Nations Convention against Corruption, but there the procedural safeguards are in the text.
Danielle Goudriaan presented the new Directive as a welcome development as there is great importance in efficiency, from a perspective of citizens and from a perspective of the accused. The aim was to transpose the United Nations Convention against Corruption and to go beyond.
She elaborated that the EU directive also covers prevention and provides for measures to prevent and fight corruption. Criminal law should be an ultimum remedium.
Based on her experience at the European Public Prosecutor’s Office, she stressed that anti-corruption bodies need to be independent of investigative authorities. From her own experience, she says it is good to have prosecutors independent of the national administration. Furthermore, she stressed the importance of explanations of the offences in the directive.
Kristo Kutiev intervened with a presentation on countering corruption from a Bulgarian perspective. The definition of corruption is that criminal corruption is always a criminal offence. Kristo Kutiev stated that corruption could exist out of the criminal field. The Bulgarian principles of corruption show that the protection of rights is only in the fourth place, which shows the Bulgarian attitude to fundamental rights.
He furthermore stressed that there are too many bodies dealing with investigation of corruption, while only one is actually able and allowed to gather evidence that can be used in court.
He also discussed the methods to counteract corruption. In the articles there are no guarantees for fundamental rights.
Juan Palomino made reflections on the Proposal for the anti-corruption directive from the perspective of company liability. He stated that the proposal lacked practical reflections on how companies will handle certain situations, especially when it comes to mitigating circumstances.
The mitigating circumstances are regulated in article 18.2, and one of them is that the offender provides the competent authorities with relevant information. This can be problematic as legal persons have the right to defend themselves and the right against self-incrimination.
Mitigating circumstances seem not to be well calibrated and this will make some of them unapplicable. The intensity of the action that companies are required to take is so high that the pros do not meet the cons.
The only practically realistic mitigating circumstance would be the implementation of effective corporate compliance program. But there should be a larger incentive to invest in such programs.
Kristo elaborated that criminal liability of companies has been problematic for a very long time in Bulgaria. There is no criminal liability as the liability is administrative. There are several parallels between the problems in the EU regulations as on a national level.
An interesting discussion on the criminal liability of companies in different member states emerged.
The panel concluded with the important note from the audience that the proposal will be published soon and therefore any comments must be provided swiftly.
Panel 3: Procedural Safeguards
Chair: Miroslav Krutina, ECBA Vice Chair, Czechia
Panel:
- Maria Barbancho Saborit, defence lawyer, Spain
- Adelina Hadjiiska, defence lawyer, Bulgaria
- Stefan Hyman, defence lawyer, United Kingdom
- Holger Matt, defence lawyer, Germany
Unfortunately, Adelina Hadjiiska could not make it to the conference. Miroslav Krutina referred to her written contribution.
Firstly, Holger Matt elaborated on the history on the roadmap of the ECBA. The issue of procedural safeguards became an issue in 2003. There was a political process towards minimum standards in procedural safeguards. After the Directives following the Stockholm Programme of 2009, further procedural safeguards in criminal proceedings have not been harmonized yet. There are so many issues that are yet to be resolved, for instance on minimum standards for trials.
ECBA published a political program. An agenda to achieve the political goals to adopt the procedural safeguards: “Agenda 2020: A new Roadmap on minimum standards of certain
procedural safeguards”.
Maria Barbancho elaborated on the steps that have been taken within the European Union when it comes to minimum standards in pretrial detention. She discussed the caselaw of the European Court of Justice and the European Court of Human Rights. Her conclusion was that there is no harmonization in the circumstances of pretrial detention and described pretrial detention as a ‘hot potato’.
In her view, articles 4 and 6 of the Directive on the presumption of innocence 2016/343 should be applicable to pre-trial detention, since there is no time to waste in the protection of unlawful detained persons.
Stefan Hyman discussed the procedural rights in jury trials in England & Wales. The sources are the Police and Criminal evidence Act, codes of practice made under that Act and caselaw made thereunder. However, if the police do not act in accordance with these regulations, one would normally include this in considerations on the fairness of the trial during the trial.
But in jury trials there should be control on what evidence goes to the jury, especially since in these trials it does not become clear how exactly a verdict is built up and which evidence is used in what manner.
The suggestion was made to Maria Barbancho to create a new working group within the ECBA to take action on pretrial detention and her concrete suggestion to make article 4 and 6 binding in pretrial detention.
Last but not least, Holger Matt discussed the impact of political discussions on the development of minimum standards for procedural safeguards.
In principle there should be no conflict of jurisdictions in this regard. The main interest should be the interest of the suspect. A criminal proceeding is focused to investigate a case and to determine guilt or not. We need clear standards if a proceeding is transferred from one member state to another, as less discretion as possible.
General Assembly
Neil Swift explained that due to formalities the General Assembly will take place during the Spring Conference in Brussels.
Dinner
In the evening the delegates had a tasty and traditional dinner at the Moma restaurant, accompanied by traditional Bulgarian music and dance.
8 October 2023
Those who were able to stay until 8 October 2023 could attend a walking tour through Sofia on Sunday morning.
Report by Rosa van Zijl
