By Stavros Papageorgopoulos, Legal Assistant, ECRE
[..] 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.
- Where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities. [..]
UN Basic Principles on the Role of Lawyers
January 24 marks a significant – yet little known – date for human rights defenders and legal associations around the world. The International Day of the Endangered Lawyer commemorates a 1977 deadly attack targeting Spanish lawyers during the country’s transition to democracy, and seeks to bring visibility to the risks lawyers face during the exercise of their profession. Although the aim of the attack was the intimidation of specialists in labour law, its symbolism sharply highlights the broad challenges and dangers of modern refugee rights litigation.
In what has been called “a shrinking space for solidarity”, asylum law practitioners and legal aid NGOs in Europe, and beyond, have been at the centre of state attempts to contain and deter migration. Whether direct or indirect, the harassment of asylum law professionals has either been a part of a formal framework or informal practices. The Stop Soros law in Hungary and the use of state of emergency in Turkey demonstrate how attacks in legal disguise are launched against lawyers. In Poland and Hungary, police raids in NGOs’ offices and restriction of access to funding aim to impede and delegitimise their activities, preventing lawyers from effectively exercising their duties and persons in need of legal advice from feeling safe to consult them. Similarly, informal practices of police intimidation of legal aid providers in France, Italy, Greece and Croatia, are very much present, taking the form of barred access to refugee facilities, obstruction of communication between lawyers and beneficiaries, or outright retaliation against lawyers who report human rights abuses. Although such unofficial practices are often much harder to monitor and challenge, they do have a place within the well-documented context of attacks on civil society in Europe.
The clampdown on refugee-assisting persons and entities, however, has not remained unopposed, as controversial measures and practices are being challenged before courts and action is taken by international actors, in an attempt to defend the defenders. The recent anti-NGO legislation in Hungary has prompted the European Commission’s infringement procedure, while both the Hungarian Helsinki Committee and the Open Society Foundations have brought cases before the Constitutional Court of Hungary and the European Court of Human Rights. Over the summer, France’s crime of solidarity case was struck down by the Constitutional Court, which clarified that humanitarian assistance is an extension of the country’s fundamental principle of fraternity. At the international level, the UN Special Rapporteur on the situation of human rights defenders published an extensive global report on the difficult situation for “persons acting to defend the rights of all people on the move”, urging states to address the challenges and protect the defenders’ rights.
The significance of upholding safeguards for lawyers has also been reiterated by the European Court of Human Rights (ECtHR), repeatedly holding that “[…] persecution and harassment of members of the legal profession strikes at the very heart of the Convention system […]”. Whether it’s a case of police presence during legal consultations, specific procedural guarantees during law office searches, or a right to enhanced confidentiality in lawyer-client communication, the Court takes a critical stance against unhindered state interference with the work of lawyers. In a case on the silencing of a human rights defender and his NGO in Azerbaijan, the Court “[…] attached particular importance to the special role of human-rights defenders in promoting and defending human rights“[…] and took into account the human rights consequences of “[…] increasingly harsh and restrictive legislative regulation of NGO activity and funding […]”.
Outside the human rights context, the Court of Justice of the European Union has also affirmed the significance of safeguarding the legal profession, as a guarantee of the right to defence. The latter has been described by the Court as a fundamental principle of EU law, along with the need for protection against arbitrary or disproportionate intervention by the public authorities.
While the protests following the 1977 attack reinforced Spain’s transition to democracy, it remains to be seen whether Europe will remain loyal to its fundamental values, showing respect for human dignity and the rule of law; values that can never be guaranteed if those defending them are intimidated. As much as the current situation seems bleak, strong international cooperation and litigation does not seem to be a lost cause. Often enough, legality and solidarity have proven to provide the most solid foundation for human rights and democracy – something to observe on January 24, as well as any other day.
Op-ed: ECRE publishes op-eds by commentators with relevant experience and expertise in the field who want to contribute to the debate on refugee rights in Europe. The views expressed are those of the author and does not necessarily reflect ECRE positions.