Lawyers must be able to carry out their professional functions freely and independently, including when acting on matters that may challenge state interests.
Lawyers have the right to form and join self-governing professional associations to represent their interests and protect their professional integrity. Lawyers also have the right to freedom of expression, including to comment publicly on matters of the law, the administration of justice, and human rights.
Lawyers have duties, particularly to their clients, for which there must be effective mechanisms of accountability that preserve the independence of the legal profession. Among their duties are: to uphold human rights and fundamental freedoms, to act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession, to maintain the honour and dignity of their profession, and to respect the interests of their clients.
International standards set out specific safeguards for the role and independence of the legal profession, and are described in greater detail in the sections that follow.
- 1.UN Basic Principles on the Role of Lawyers, particularly Principle 16.
Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad;and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.
The Committee expresses concern about the potential impact of the proposed draft law on lawyers’ activity and the Bar on the independence of the legal profession and the right to a fair trial as stipulated in article 14 of the Covenant. In particular, it notes with concern that the bill proposes to enable the State Registration Agency to remove a lawyer’s licence to practise through a court action without prior approval of the Chambers of Lawyers under certain circumstances, and to obtain access to the legal files of lawyers under investigation and demand information on any case in which they are involved. (art. 14)
The State party should review the compatibility of the proposed draft law on lawyers’ activity and the Bar with its obligations under article 14 of the Covenant, as well as article 22 of the Basic Principles on the Role of Lawyers and refrain from taking any measures that constitute harassment or persecution of lawyers and unnecessarily interfere with their defence of clients.
While appreciating the steps that have been initiated by the State party to reform the judiciary, including Presidential Decree of 17 January 2000 to improve the procedures for the appointment of judges, the Committee is concerned at reports of irregularities during the selection procedure in practice. Furthermore, the Committee is concerned at the lack of security of tenure for judges, and at the fact that decisions concerning the assignment of judges and affecting their seniority appear to be made at the discretion of the administrative authorities, may expose judges to political pressure and jeopardize their independence and impartiality. The Committee considers that the new Law on the Bar may compromise lawyers’ free and independent exercise of their functions (art. 14).
The Committee recommends the institution of clear and transparent procedures to be applied in judicial appointments and assignments, in order to ensure full implementation of the legislation in practice and to safeguard the independence and impartiality of the judiciary. The State party should furthermore ensure that the criteria for access to and the conditions of membership in the Bar do not compromise the independence of lawyers. The State party should provide information on the distinction between “licensed lawyer” and member of the Bar.
The Committee urges the State Party to guarantee the rights set forth in article 14 of the Covenant, in particular by remedying the deficiencies with regard to the exercise of the right to defence and the right to appeal. The creation of an independent legal profession is, in the Committee’s view, a necessary precondition for effective enjoyment of such rights.
- 2. UN Basic Principles on the Role of Lawyers, Principle 23 and 24.
23. Lawyers like other citizens are entitled to freedom of expression, belief, association and assembly. In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional restrictions by reason of their lawful action or their membership in a lawful organization. In exercising these rights, lawyers shall always conduct themselves in accordance with the law and the recognized standards and ethics of the legal profession.
24. Lawyers shall be entitled to form and join self‐governing professional associations to represent their interests, promote their continuing education and training and protect their professional integrity. The executive body of the professional associations shall be elected by its members and shall exercise its functions without external interference.
- 3. UN Basic Principles on the Role of Lawyers, Principle 12, 14 and 15.
12. Lawyers shall at all times maintain the honour and dignity of their profession as essential agents of the administration of justice.
14. Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.
15. Lawyers shall always loyally respect the interests of their clients.
- 4. See for example UN Basic Principles on the Role of Lawyers. See also International Commission of Jurists, International principles on the independence and accountability of judges, lawyers and prosecutors – Practitioners’ guide, no. 1 (2007), pp. 63-69.↵