CONFERENCE REPORT – ATHENS 2019

The reception was held at the Benaki Museum with welcome speeches by Vincent Asselineau, Chair of the ECBA and Ilias Anagnostopoulos, Chair of the Hellenic Criminal Bar Association.

On Saturday, the conference opened with welcoming speeches by Vincent Asselineau, Chair of the ECBA, who welcomed the participants and announced the conference agenda.

Dimitris Vervesos, Chair of the Athens Bar Association emphasized that the conference is timely having in mind the reforms of the Greece’s penal system but also due to a regression of the EU law and efficient rule of law. He made it clear that the fight against crime should not undermine the rule of law especially in light of Acquis Communautaire and that lawyers must stand united and guard their independence through CCBE, national Bars, and the ECBA. Right to have an attorney is a key constitution of fair trial and lawyers are access of all citizens to justice, so that judicial system becomes available to everyone. Attorneys bear the burden of acting on behalf of their clients. There are, however, threats to access to counsel such are trials without counsel which the Greek legislator has introduced and which should not be allowed. This allows judges to ignore request to adjourne the hearings. In addition, the lawyers as champions of human rights should be able to defend any individual asylum seeker and reaffirmed prevalence of international law and order. All refugees should have access to legal aid and seek asylum.

Panel on Attorney – Client Privilege

Ilias Anagnostopulos, Chair of the Panel announced the panel and stated that in Greece the lawyers are under obligation to report under AML rules the details of their relationship with the clients and that the privilege is under attack due to a new technology.

Hayley Ichilcik gave the explanation of the case of ENRC and stated that basically privileges do not longer apply in full to internal investigations but have implications to internal investigations. She explained that there are two types of privileges attorney client and litigation (to third parties) - if a party can show that they have an upcoming litigation. In bribery cases – first step is internal investigation and interviews with third parties. She further explained the ENRC case who conducted an internal investigation and dialoged with SFO and agreed to give the SFO the result they might benefit from. Then the ENRC declined to give the report due to the litigation privilege, but the SFO challenged and stated that at that point they could not have contemplated a litigation. The court found that there was no litigation as SFO was not adversarial so there was no privilege - the litigation privilege only applies if the prosecution can be contemplated. The court of Appeal overturned and held that if there is a clear risk of prosecution than there is a privilege. However, in practice the SFO now punishes the companies if they do not waive the privilege the effect being if companies do not waive privilege the SFO may not enter into the negotiation.

Oliver Kipper explained the situation in Germany and that it is not clear from when the privilege starts. He further explained the Jones Day case who was working for VW due to a US investigation against VW and Audi (a subsidiary of VW). The local prosecutor in Brunswick decided to open the case against VW and the prosecutor in Munich opened a case against Audi who actually never gave a mandate to Jones day. The Munich prosecutor then raided the Jones Day and seized some documents for use in VW and Audi investigations. The constitutional complaints were lodged (by VW, Jones Day and individual lawyers) on different grounds to the Constitutional court who rejected them for different reasons and stated inter alia that the privilege is only relevant for attorney-client communication and not some other party such is the subsidiary but also confirmed that the Audi files cannot be used in VW case which is a well-protected privilege. Therefore an office can still be raided for other papers but these papers cannot be used in a direct case.

Jaime Campaner stated that the Spanish constitution guarantees secrecy of lawyer-client communication whereby the practice is somewhat different. He gave an example of Judge Garzon who tapped the communication of inmates in cases of terrorism. Also, in Spanish procedure code – defence lawyer is exempted to testify –communication are confidential unless there is an evidence against the lawyer itself. There is always a discretion of the judge. In practice – police reports to the judge all of the taped conversations meaning that the police analyses the report and defence strategy. He concluded with Mesi case which has been criticized by the court because tax advisors were not prosecuted due to which the treasure department will draft a new legislation.

Dominika Stepinska-Duch addressed the political situation in Poland and stated that the direction is not good especially for defence lawyers as the prosecutor’s office depends on politicians. She stated that the secrecy can be waived and circumvented and that there is no position of Supreme Court. The parliament is working on a law similar to Sapin II which will create an obligation for internal investigation however there are still no rules of the Bars explaining how this will be conducted. She gave an example of a Polish lawyer who refused to testify and was arrested but this was later dismissed. She concluded that some firms have been searched and that this will not change any time soon.

George Pyromallis asserted that there are certain provisions on attorney-client privilege in Greek criminal code and constitution. Search is allowed in cases of disclosure of criminal act but the presence of a judge is necessary. Law offices can also be searched, but a lawyer can object due to the privilege. The Bar can opine whether a particular document can be seized, via a special committee. Despite Article 8 ECHR guarantees there are laws in Greece that enable the seizure of certain documents. He gave the example of Vinci Construction which was was judged as disproportionate with the seizure (all documents and computer). In addition, in Greece, usually the Financial Prosecutor has the full access to documentation by naming a lawyer as a suspect although the level of proof for such an accusation is not certain. The authorities will listen to communication and then discuss on the further course of action. He concluded that there is still no ruling of the Supreme Court in this.

Jaanus Tehver said that today theoretically there is a privilege in Estonia, but practically no, authorities circumvent this by using technology and psychology. Everything is recorded and stored and not possible to delete. Under Bar rules there is some protection, but under CCP no protection, thus enabling the breach of the privilege. In addition, under substantive criminal law, if you are a lawyer and named as a member of a criminal group makes it very easy not to invoke protection. In general, there are no positive notes from Estonia. The panel closed with a wide discussion from the audience and concluded that more effort is needed by the lawyer’s community to secure the application of the privilege.

Amedeo Barletta announced the next presentation and the interplay of the preliminary reference procedure vis a vis legal privilege.

Laure Baudrihaye-Gerard explained the role of Fair Trials and in particular the LEAP and that the CJEU can be used to interpret the Roadmap directives. There are toolkits, training activities and support in specific cases. She further explained in a nutshell the preliminary reference procedure in criminal law under Article 267 TFEU - there has to be a question of EU law and parties are allowed to make submission. Proceedings are before the domestic law and then before the CJEU whereby the court gives the ruling on the question but not on the merits. The case law is still in infancy due to Lisbon Treaty but there are important decision Aranyosi and Celmer (risk of inhumane treatment and right to a fair trial). The court also recently ruled on the concept of judicial authority – the German and Lithuanian authority is not sufficiently independent – AG opinion. She concluded that this could be a good defence strategy, but is necessary to persuade the national court to make the reference therefore very important to formulate appropriate question and background info. This should be a coordinated litigation and concerted effort and also gives the possibility on leveraging the judicial politics. The presentation ended with wide discussion from the audience posting various questions.

Hans van de Wal gave introduction on the various aspect of the next topic and presentation.

Fabienne Lassalle, General Director of SOS Mediterranee and Manager of the boat Aquarius gave a presentation on the SOS Mediterranee, an organization responsible for saving lives in Mediterranean Sea and protecting and assisting the survivors. She further explained the legal framework of search and rescue i.e. international conventions and the recent developments in the Mediterranean Sea from 2014. She concluded with a call for action in saving lives and disembarkation of survivors to a place of safety. The audience than posed several questions.

Alexis Anagnostakis gave an introduction on the second panel and expressed concerns whether a lawyer can be considered an accomplice.

Kirsty Brimelow started with an example of Colombia where lawyers were stigmatized, while in the UK this is not the case, save for the tabloids. Judges in tabloids were also stigmatized. She continued with Greece and the refugee crisis where statistics are staggering - in summary 25.4 milion refugees half of those are under 18 years old. Lawyers have an important role to play with implementation of child rights i.e. Convection of the rights of the Child (which the US has not ratified). She also expressed concerns of the Calais dismantled camp and braches of the children’s rights both by France and the UK, where children have been transferred to adult camps and Hungary’s stop Soros legislation where the EU found that Hungary failed to fulfil its EU obligations.  

Panagiotis Perakis presented a report that showed the number of migrants has doubled. In Greece there are 17000 people while the capacity is cca 6000 people. He gave an overview of problems with migrants in different countries and the need for migrant protection. The Directive from the EU provide asylum seekers to have adequate support so there is a huge need for legal aid. He concluded that the refugee crisis is the wasteland of the rule of law – lawyers must improve their role and prove what they really are.

Nicola Canestrini emphasized that the rule of lawyers is crucial for the rule of law. In Italy the problem was defending borders as there were tens of thousands deaths close to 20.000. He presented a case of Salvini and the role that ECBA took in this respect. Naples Bar association wrote to police asking why they are preventing an asylum seeker to be accompanied with a lawyer. He said that unfortunately lawyers have to write to Governments to adhere to UN Basic principles on the role of lawyers. He concluded that there is no democratic society without the role of lawyers.

Vassills Kerasiotis explained the situation in Greek island Lezvos when defending refugees. Cases are prosecuted as felonies instead of demeanors, because pretrial detention is used for felonies. Some cases are even prosecuted as riots but eventually dismissed by the court. People were detained for stealing a sheep to justify a pretrial detention. He also gave other examples. He concluded that there is a positive outcome however in some cases as the court has overturned some decisions.

Alexis Anagnostakis concluded that it is a clear inappropriate criminalization of asylum seekers.

The panel concluded with a massive discussion from the audience.

The last panel was about Brexit, E-evidence, CCBE’s work of the Criminal Law Committee, ECBA’s Anti-Corruption working group and the Belfast conference. The participants Stefanie Schott, Vincent Asselineau, James MacGuill and Vladimir Hrle all gave short but effective presentations on the topics followed by a discussion.

The conference ended with a General Assembly and the short presentation of Neil Swift on the ECBA’s Constitution amendments. The amendments were accepted by the delegates leading into the end of the official part of the Conference in Athens.

Report by Vladimir Hrle