The study was prompted in particular by concern about the occurrence of harassment, threats and attacks against lawyers in many of the 47 Council of Europe member states. It examines the extent of these problems, the use made in practice of the existing instruments – the European Convention on Human Rights and its case law, and the Council's Committee of Ministers' Recommendation on the freedom of exercise of the profession of lawyer – as well as the level of protection and the manner in which this is currently offered to lawyers.
Written by consultant Jeremy McBride under the supervision of the CDCJ, it assesses the possible added value and effectiveness of a possible future legal instrument, in the field, and its advantages and disadvantages or risks, according to the nature of such an instrument as binding or non-binding.
The study finds that the problems faced by the profession of lawyer, both individually and institutionally, are significant and seem to be becoming more extensive. These problems are inconsistent both with the broad thrust of the applicable "soft law" standards, and in many, but not all, cases with legally binding ones, notably the European Convention. However, the soft law standards are insufficiently precise and the coverage by the legally binding ones is not comprehensive.
Risks identified in relation to a new instrument, especially one that is legally binding, include difficulties both in obtaining agreement as to its content and in gaining acceptance for an enhanced degree of protection for the profession of lawyer, as well as the possibility that a legally binding instrument could be too inflexible or that an implementation mechanism would result in unnecessary duplication of proceedings under the European Convention.
While not all these risks can be entirely discounted, the study considers that there are ways in which those that remain can be mitigated without depriving a new instrument of any added value.
At the same time it doubts that a non-binding instrument relating to the profession of lawyer would really be sufficient to elicit the commitment needed to secure observance of the standards which it prescribes.
As a result, the study concludes that there would be sufficient justification for adopting a legally binding instrument on the profession of lawyer, setting out the standards in a manner that is both more precise and more comprehensive, with implementation being entrusted to a body with competence to give guidance on the application of its provisions and – on an optional basis – to issue opinions as to the application of complaints of a collective nature submitted by entities approved for this purpose. It does not attempt to suggest what form this body should take.
The CDCJ will continue working on these issues as part of its standard-setting activities, taking into account the elements of the study and in accordance with the decisions of the Committee of Ministers.