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Venezuela: Independence of the legal profession

In order for legal assistance to be effective, it must be carried out independently.[1] To this end, international law establishes safeguards aimed at ensuring the independence of the individual lawyer, as well as the profession as a whole. 

The UN Basic Principles recognise that lawyers are 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 are to be elected by its members and are to exercise its functions without external interference.[2] The UN Special Rapporteur on the independence of judges and lawyers has also underscored the “importance of an organized legal profession, including an independent and self-regulated association, to safeguard the professional interests of lawyers”.[3] 

Lawyers’ professional organizations’ functions in ensuring the profession’s independence include, among other things, maintaining the honour, dignity, integrity, competence, ethics, standards of conduct and discipline of the profession, as well as protecting the intellectual and economic independence of the profession; defending the role of lawyers in society; promoting equal access of the public to the system of justice; promoting and supporting law reform; promoting a high standard of legal education as a prerequisite for entry into the profession, while ensuring equal access for all persons having the requisite professional competence; and promoting the welfare of the members of the profession.[4] 

International standards place a duty on the authorities of the State to abstain from interfering in the establishment and work of professional associations of lawyers. The Human Rights Committee has raised concern about requirements for the compulsory affiliation of lawyers to a State-controlled association and the need for authorization by the Executive as prerequisites for the exercise by lawyers of the legal profession.[5] 

International standards also underscore that associations of lawyers must, however, cooperate with governments to ensure effective and equal access to legal services, and to ensure that lawyers are able, without improper interference, to counsel and assist their clients in accordance with the law and recognized professional standards and ethics.[6]

Lawyers’ associations are created to safeguard the professional interests of lawyers and to protect and strengthen the independence of the legal profession. As associations of essential agents in the administration of justice, they also have a key role in supporting law and justice sector reform. They should be able to engage in activities, and to initiate and participate in public discussion on the substance, interpretation and application of existing and proposed legislation. They should do so in a manner that is consistent with the protection and promotion of human rights, upholding the dignity of the legal profession and the legal system.[7]

 

The Bar Associations in Venezuela are professional corporations with legal personality and their own patrimony, who oversee their members’ compliance with the law and the ethical principles of the legal profession, and protect the interests of the lawyers in the country.[8]

The Bar Associations are territorially organized in the Departments of the country. The Federation of Bar Associations unites all the departmental Bar Associations.[9] The Federation is composed of the Assembly, the Superior Council, the Directory and the Disciplinary Tribunal.[10]

Among other functions, the Bar Associations actively participate and provide legal and technical advice in the drafting, design and adoption of laws and other provisions affecting the exercise of the legal profession,[11] provide free legal assistance in cases when ad litem representation is required by the judge,[12] and promote the continuing and specialized training and education of lawyers, through relevant studies and research in the field.[13]

The Bar Associations are composed of:[14]

  • The Assembly of members;
  • The Executive Board; and,
  • Disciplinary Tribunals.

The Executive Board consists of the President, the Secretary, the Treasurer, the Librarian, and three substitute members. The Assembly elects all of the members of the Executive Board by secret ballot for a two-year term.[15]

The Disciplinary Tribunal is independent, made up of five titular members and three substitutes, who are elected for a two-year term in the manner decided by the Executive Board.[16]

Judgments of the STJ have unduly interfered with the election and appointment of the authorities of the Bar Associations, including the disciplinary tribunals.[17] For example, in 2003, the Electoral Chamber of the STJ issued a judgment ordering the Bar Association of Barinas to carry out the election of the members of the Executive Board according to regulations issued by the National Electoral Council.[18] A 2008 judgement of the Constitutional Chamber of the STJ set out a list of names that the Court ordered be appointed as interim members of the Executive Board and Disciplinary Tribunal of the Bar Association. It further ordered that the election of its titular members should be conducted, supervised and organized by the National Electoral Council.[19]

Prior to the adoption of the Constitution in 1999, Bar Associations were partially funded with fees paid by litigants in civil, commercial, and administrative procedures, known as “judicial fees”. The Law of Judicial Fees provided that five per cent of such fees paid in these procedures should be used to finance Bar Associations and free legal aid.[20] Furthermore, the Law of Lawyers established that the patrimony of the Bar is constituted by:[21]

  • The membership fee of its associates;
  • The contributions of the State;
  • The contributions of public and private entities; and,
  • Five per cent of judicial fees.

 

Since the adoption of the 1999 Constitution, the income of the Bar Associations has diminished, as the Constitution abolished the payment of judicial fees,[22] eliminating this line of contributions to the Bar Associations’ patrimony.

 

Footnotes    (↵ returns to text)

  1. 1. UN Basic Principles on the Role of Lawyers, Preamble ”para.

    Whereas adequate protection of the human rights and fundamental freedoms to which all persons are entitled, be they economic, social and cultural, or civil and political, requires that all persons have effective access to legal services provided by an independent legal profession,

  2. 2. UN Basic Principles on the Role of Lawyers, ”Principle

    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.

     Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), ”Article

    There may be established in each jurisdiction one or more independent and self-governing associations of lawyers recognized in law, whose council or other executive body shall be freely elected by all the members without interference of any kind by any other body or person. This shall be without prejudice to their right to form or join in addition other professional associations of lawyers and jurists.

    International Bar Association (IBA), Standards for the Independence of the Legal Profession (1990), ”Standard

    There shall be established in each jurisdiction one or more independent self-governing associations of lawyers recognised in law, whose council or other executive body shall be freely elected by all the members without interference of any kind by any other body or person. This shall be without prejudice to their right to form or join in addition other professional associations of lawyers and jurists.

  3. 3. Gabriela Knaul, Special Rapporteur on the Independence of Judges and Lawyers, Report on missions to Mozambique, UN Doc. A/HRC/17/30/Add.2 (2011), ”para

    The Special Rapporteur welcomes these developments, which are in accordance with international standards.16 She wishes to underscore the importance of an organized legal profession, including an independent and self-regulated association to safeguard the professional interests of lawyers, while protecting and strengthening ethics and the integrity and independence of the legal profession. She invites the international and regional community to explore ways of cooperating with OAM so that it can implement its Strategic Plan 2009-2014 and continue performing its important functions.

  4. 4.See International Bar Association (IBA),  Standards for the Independence of the Legal Profession (1990), ”Article

    The functions of the appropriate lawyers’ association in ensuring the independence of the legal profession shall be inter alia:

    a) to promote and uphold the cause of justice, without fear or favour;

    b) to maintain the honour, dignity, integrity, competence, ethics, standards of conduct and discipline of the profession; and to protect the intellectual and economic independence of the lawyer from his or her client;

    c) to defend the role of lawyers in society and preserve the independence of the profession;

    d) to protect and defend the dignity and independence of the judiciary;

    e) to promote free and equal access of the public to the system of justice, including the provision of legal aid and advice;

    f) to promote the right of everyone to a prompt, fair and public hearing before a competent, independent and impartial tribunal and in accordance with proper and fair procedures in all matters;

    g) to promote and support law reform, and to comment upon and promote public discussion on the substance, interpretation and application of existing and proposed legislation;

    h) to promote a high standard of legal education as a prerequisite for entry into the profession and the continuing education of lawyers and to educate the public regarding the role of a Lawyers’ Association;

    i) to ensure that there is free access to the profession for all persons having the requisite professional competence, without discrimination of any kind, and to give assistance to new entrants into the profession;

    j) to promote the welfare of members of the profession and the rendering of assistance to members of their families in appropriate cases;

    k) to affiliate with and participate in the activities of international organisations of lawyers.

  5. 5. Human Rights Committee, Concluding Observations of the Human Rights Committee on Belarus, UN Doc. CCPR/C/79/Add.86 (1997), ”para.

    The Committee also notes with concern the adoption of the Presidential Decree on the Activities of Lawyers and Notaries of 3 May 1997, which gives competence to the Ministry of Justice for licensing lawyers and obliges them, in order to be able to practise, to be members of a centralized Collegium controlled by the Ministry, thus undermining the independence of lawyers. In this regard:

    The Committee stresses that the independence of the judiciary and the legal profession is essential for a sound administration of justice and for the maintenance of democracy and the rule of law. The Committee urges the State party to take all appropriate measures, including review of the Constitution and the laws, in order to ensure that judges and lawyers are independent of any political or other external pressure.  The attention of the State party is drawn in this connection to the 1985 Basic Principles on the Independence of the Judiciary and the 1990 Basic Principles on the Role of Lawyers, adopted by the United Nations General Assembly.

  6. 6. UN Basic Principles on the Role of Lawyers, ”Principle

    Professional associations of lawyers shall cooperate with Governments to ensure that everyone has effective and equal access to legal services and that lawyers are able, without improper interference, to counsel and assist their clients in accordance with the law and recognized professional standards and ethics.

    For a more elaborate list on the functions of lawyers’ associations, see International Bar Association (IBA), Standards for the Independence of the Legal Profession,  ”Standard

    The functions of the appropriate lawyers’ association in ensuring the independence of the legal profession shall be inter alia: 

    a) to promote and uphold the cause of justice, without fear or favour; 

    b) to maintain the honour, dignity, integrity, competence, ethics, standards of conduct and discipline of the profession; and to protect the intellectual and economic independence of the lawyer from his or her client;

    c) to defend the role of lawyers in society and preserve the independence of the profession; 

    d) to protect and defend the dignity and independence of the judiciary; 

    e) to promote free and equal access of the public to the system of justice, including the provision of legal aid and advice; 

    f) to promote the right of everyone to a prompt, fair and public hearing before a competent, independent and impartial tribunal and in accordance with proper and fair procedures in all matters; 

    g) to promote and support law reform, and to comment upon and promote public discussion on the substance, interpretation and application of existing and proposed legislation; 

    h) to promote a high standard of legal education as a prerequisite for entry into the profession and the continuing education of lawyers and to educate the public regarding the role of a Lawyers’ Association; 

    i) to ensure that there is free access to the profession for all persons having the requisite professional competence, without discrimination of any kind, and to give assistance to new entrants into the profession; 

    j) to promote the welfare of members of the profession and the rendering of assistance to members of their families in appropriate cases; 

    k) to affiliate with and participate in the activities of international organisations of lawyers.

     Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), ”Article

    The functions of a Bar Association in ensuring the independence of the legal professional shall be inter alia:

    (a) To promote and uphold the cause of justice, without fear or favour;

    (b) To maintain the honour, dignity, integrity, competence, ethics, standards of conduct and discipline of the profession;

    (c) To defend the role of lawyers in society and preserve the independence of the profession;

    (d) To protect and defend the dignity and independence of the judiciary;

    (e) To promote the free and equal access of the public to the system of justice, including the provision of legal aid and advice;

    (f) To promote the right of everyone to a fair and public hearing before a competent, independent and impartial tribunal and in accordance with proper procedures in all such proceedings;

    (g) To promote and support law reform, and to comment upon and promote public discussion on the substance, interpretation and application of existing and proposed legislation;

    (h) To promote a high standard of legal education as a prerequisite for entry into the profession;

    (i) To ensure that there is free access to the profession for all persons having the requisite professional competence and good character, without discrimination of any kind, and to giver assistance to new entrants into the profession;

    (j) To promote the welfare of members of the profession and render assistance to a member of his family in appropriate cases;

    (k) To affiliate with and participate in the activities of international organizations of lawyers.

    Also see General Assembly, United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, UN Doc. A/RES/67/187 (2012), ”Principle

    Principle 10. Equity in access to legal aid.

    Special measures should be taken to ensure meaningful access to legal aid for women, children and groups with special needs, including, but not limited to, the elderly, minorities, persons with disabilities, persons with mental illnesses, persons living with HIV and other serious contagious diseases, drug users, indigenous and aboriginal people, stateless persons, asylum seekers, foreign citizens, migrants and migrant workers, refugees and internally displaced persons. Such measures should address the special needs of those groups, including gender‑sensitive and age‑appropriate measures.States should also ensure that legal aid is provided to persons living in rural, remote and economically and socially disadvantaged areas and to persons who are members of economically and socially disadvantaged groups.

    Principle 11. Legal aid in the best interests of the child. 

    In all legal aid decisions affecting children, the best interests of the child should be the primary consideration. Legal aid provided to children should be prioritized, in the best interests of the child, and be accessible, age‑appropriate, multidisciplinary, effective and responsive to the specific legal and social needs of children.

  7. 7. UN Basic Principles on the Role of Lawyers, ”Principles

    Lawyers shall at all times maintain the honour and dignity of their profession as essential agents of the administration of justice.

     and ”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.

     Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), ”Article

    The functions of a Bar Association in ensuring the independence of the legal professional shall be inter alia: … (g) To promote and support law reform, and to comment upon and promote public discussion on the substance, interpretation and application of existing and proposed legislation;

    International Bar Association (IBA), Standards for the Independence of the Legal Profession (1990), ”Standard

    The functions of the appropriate lawyers’ association in ensuring the independence of the legal profession shall be inter alia:

    a) to promote and uphold the cause of justice, without fear or favour;

    b) to maintain the honour, dignity, integrity, competence, ethics, standards of conduct and discipline of the profession; and to protect the intellectual and economic independence of the lawyer from his or her client;

    c) to defend the role of lawyers in society and preserve the independence of the profession;

    d) to protect and defend the dignity and independence of the judiciary;

    e) to promote free and equal access of the public to the system of justice, including the provision of legal aid and advice;

    f) to promote the right of everyone to a prompt, fair and public hearing before a competent, independent and impartial tribunal and in accordance with proper and fair procedures in all matters;

    g) to promote and support law reform, and to comment upon and promote public discussion on the substance, interpretation and application of existing and proposed legislation;

    h) to promote a high standard of legal education as a prerequisite for entry into the profession and the continuing education of lawyers and to educate the public regarding the role of a Lawyers’ Association;

    i) to ensure that there is free access to the profession for all persons having the requisite professional competence, without discrimination of any kind, and to give assistance to new entrants into the profession;

    j) to promote the welfare of members of the profession and the rendering of assistance to members of their families in appropriate cases;

    k) to affiliate with and participate in the activities of international organisations of lawyers.

  8. 8. Law of Lawyers, Article 33.
  9. 9. Law of Lawyers, Article 43.
  10. 10. Law of Lawyers, Article 47.
  11. 11. Law of Lawyers, Article 42(6).
  12. 12. International Commission of Jurists, Fortaleciendo el Estado de Derecho en Venezuela (2014), p. 38.
  13. 13. Law of Lawyers, Article 42(3).
  14. 14. Law of Lawyers, Article 35.
  15. 15. Law of Lawyers, Articles 39-40.
  16. 16. Law of Lawyers, Article 58.
  17. 17. See: Judgment of 14 February 2008, Supreme Tribunal of Justice, Constitutional Chamber, File 04-1263. Available at: http://www.tsj.gov.ve/decisiones/scon/febrero/11-140208-04-1263.htm, last accessed 22 April 2014. Also see: Judgment No. 105 of 4 August 2003, Supreme Tribunal of Justice, Electoral Chamber, File No. AA70-X-2007-000048. Available at: http://www.tsj.gov.ve/decisiones/selec/Diciembre/234-131207-X00048.htm, last accessed 22 April 2014.
  18. 18. Judgment No. 146 of 22 October 2001, Supreme Tribunal of Justice, Electoral Chamber, File No. AA70-E-2001-0000131. Available at:http://www.tsj.gob.ve/decisiones/selec/octubre/146-221001-000131.HTM, last accessed 21 August 2014.
  19. 19. Supreme Tribunal of Justice, Constitutional Chamber, File No. 04-1263, 14 February 2008. Available at: http://www.tsj.gob.ve/decisiones/scon/febrero/11-140208-04-1263.HTM, last accessed 21 August 2014.
  20. 20. Decree of Judicial Fees, Article 41.
  21. 21. Law of Lawyers, Article 38.
  22. 22. Constitution, Article 26.

    Everyone has the right to access the organs comprising the justice system for the purpose of enforcing his or her rights and interests, including those of a collective or diffuse nature to the effective protection of the aforementioned and to obtain the corresponding prompt decision.

    The State guarantees justice that is free of charge, accessible, impartial, suitable, transparent, autonomous, independent, responsible, equitable and expeditious, without undue delays, superfluous formalities or useless reinstating.

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