AEA – EAL – Strona 18 – AEA

Elections of President and Vice-President of the AEA-EAL

Napisane przez AEA - EAL w dniu 2020-06-09. Opublikowano w News. Zostaw komantarz

We are pleased to announced that during today’s meeting of the AEA-EAL Board of Directors Maria Ślązak has been unanimously re-elected for the post of the President and Christoph von Wilcken – also unanimously – for the post of Vice-President.

Maria Ślązak

Maria has long time experience in advising and representing in courts In particular she specializes in services to foreign investors as regards both commercial law and property investment, general principles of tax law, competition law, legal services to banks and foreign investment funds, advisory in privatization and restructuring processes, negotiations and drafting of trade contracts in such areas as, among others, pharmaceutical law; dispute resolution between parties through negotiations or mediation as well as court and arbitration proceedings. Maria is an arbitrator of the Court of Arbitration at the Polish Chamber of Commerce in Warsaw and at the Polish Confederation of Private Employers Lewiatan. In 2013-2016 Vice-President of the Polish Bar of Attorneys-at-law. In 2015 President (2012-2014 Vice-President) of the Council of Bars and Law Societies of Europe (CCBE).

Ph. D. Christoph von Wilcken

Christoph is well-known expert in Business Recovery/Cross-Border Insolvencies with more than 20 years practice in these areas of law. From 2000 to 2003 he was an attorney at law with Andersen Legal (Arthur Andersen) as well as E&Y Law (Ernst & Young), Berlin, Service-Line Corporate M&A.From 2004 to 2009 – attorney at law with Dr. Weiland and Partner, Hamburg, business
sector: insolvency administration, conduct of cases, insolvency-related consulting. Since 2009 an advocate in Schulze & Braun GmbH specialized in renovation advice and international renovation advice / cross Border Restructuring and Insolvencies. Christoph is an author of a number of publications on insolvency and restructuring. He is a member of DAV working party on insolvency law and restructuring, Berliner Steuergespräche, Deutscher Anwaltverein (DAV) and TMA Turnaround Management Association UK.

Dealing with the Covid-19 crisis in Lithuania – concerns for human rights?

Napisane przez AEA - EAL w dniu 2020-06-01. Opublikowano w Articles.

June 1, 2020

Mindaugas Kukaitis

I believe that no one has the moral right to say that there is no need to fight epidemics, pandemics and that every saved life is irrelevant to the state, although we must question whether the state has taken reasonable and adequate measures to prevent spread the disease while having all the legal instruments in its hands and while managing financial resources with the right intentions.

Before discussing whether the taken measures are adequate we need to look at the official statistics – average worldwide morbidity is 57 cases per 100 thousand population (fatality rate – 6,77 per cent); Spain – 488 (fatality rate – 11,9 per cent from diagnosed persons); USA – 444; United Kingdom – 356; Belarus – 294; France – 211; Germany – 210; Russia – 180; Turkey – 176; Lithuania – 54 (fatality rate – 3,54 per cent); Poland – 47; Kazakhstan – 30 (fatality rate – 0,59 per cent); Georgia – 18.

There are only few situations when the state can legally restrict the individual rights and freedoms, i.e. by introducing martial law, by introducing a state of emergency and, as has now happened in Lithuania, the introducing a quarantine. Martial law – is a special legal situation established by the Constitution of the Republic of Lithuania and the Law on Military Situation of the Republic of Lithuania, which is introduced to protect the Homeland in case of armed attack or threat, when the sovereignty of the State of Lithuania or the integrity of its territory is threatened, or, if necessary, to fulfil the international obligations of the State of Lithuania in order to ensure the defence of the State and other vital functions of the State during the war. A state of emergency is a special legal regime in a state or a part thereof, which allows to apply temporary restrictions which are established in the Constitution of the Republic of Lithuania and the Law on State of Emergency on the exercise of the rights and freedoms of natural persons and temporary restrictions on the activities of legal persons. Quarantine, on the other hand, is a special regime for the prevention and control of contagious diseases introduced to individual establishments or infected areas when the prevalence of contagious pathogens of unknown origin or cases, outbreaks or epidemics of particularly serious contagious diseases are recorded. The purpose of quarantine is to establish special conditions for work, life, rest, travel, economic and other activities of persons and thereby limit the spread of contagious diseases (the Law on the Prevention and Control of Contagious Diseases of the Republic of Lithuania). If the first two situations clearly give the State the legislative power to restrict human rights and freedoms, then the legal and factual purpose of Quarantine is quite different, during which special conditions for work, life, rest, travel, economic and other activities of persons must be established. Nevertheless, after the introduction of the Quarantine Regime in Lithuania, it can be seen that some actions, decisions and prohibitions did not create special conditions, but simply limited, restricted, complicated parts of the natural human rights enshrined in the Constitution of the Republic of Lithuania (inviolability of the private life of a human; inviolability of the property; inviolability of the home of a human being; prohibition of limitation of judicial protection; prohibition of free movement, free departure from Lithuania; prohibiting or obstructing citizens to choose unarmed to peaceful meetings; opportunities for free choice of work and business, the right to decent, safe and healthy working conditions, fair pay for work and social security; the right to rest and leisure; the right to strike; the right to receive medical aid and services, and etc).

What is worrying?

Firstly, the Quarantine is not equal to a state of emergency or martial law, but the restrictions of Quarantine are greater than those of a state of emergency or war.

Secondly, all decisions on restrictions on human rights and freedoms have been transferred from the level of the Legislators to the level of the Government and even further below to the level of the Minister, although these decisions should be adopted and allowed only by the Parliament of the Republic of Lithuania.

Thirdly, decisions on restrictions are taken as a matter of urgency, without a mechanism for urgently defending violated rights, without an impact assessment, without a debate with the public, without a strategy disclosed to the public in advance, chaotically.

Fourthly, people’s dependence on power is increasing. In the absence of a revealed strategic plan for the application of restrictions, it is impossible to plan, predict, prepare for the actions of the Government, especially prohibitions, constraints, restrictions.

Fifthly, disproportionate prohibitions were applied or attempted to be enacted – it was aimed to legalize the control of data traffic on mobile devices as detailed in the Law on Regulation of Communications, attempted to restrict the constitutional right of medical staff to freely choose workplaces, involuntary treatment was introduced, the movement of the non-sick (healthy people) was limited by the property they own.

Sixthly, there is no prediction of legal certainty, clarity and action in today’s politics. It must be borne in mind that any restriction can be both a medicine and a poison with irreversible consequences.

What needs to change?

It is necessary to start with clear strategic plans on how to deal with the epidemic, when, what, how and under what conditions restrictive measures will be applied and how and when they will be lifted. Restrictions must be adequate, proportionate, timely and professionally justified.

The Lithuanian Bar Association has taken active steps to provide criticism and our own expert assessment of possible human rights violations in the legislation.

Representatives of the State did not assess the threat of the virus before its arrival, but the people have underestimated the increase in States‘ power at the expense of human rights. Government must serve the people, not the other way around. The minimum thing we need to do immediately is to return our free thoughts to the thoughts of the former free man and to defend the fundamental principles of human rights.

AEA-EAL General Assembly online

Napisane przez AEA - EAL w dniu 2020-05-25. Opublikowano w News. Zostaw komantarz

General Assembly – confirm your participation

agenda, keynote bio and remaining informations below

[fluentform id=”2″]

Dear Colleagues, Dear Friends,

This year, due to restrictions imposed by authorities of many countries, as well as necessity to keep social distance, the General Assembly will be organized in a hybrid form on June 25, 2020 at 17.30 (CET). We are delighted to inform you that the Keynote Speaker this year will be Sophie Moonen from DG Competition, European Commission. Sophie will speak on COVID-19 state aid in the air transport sector as the pandemic influences Commission’s approach to the state aid in general, loosening restrictions on how and when state aid may be granted.

In accordance with the provisions of Belgian law governing our Association and particularly the Royal Decree N° 4 of 9 April 2020, only the chair and the secretary of the meeting as well as a scrutineer will be present. Together they will constitute the bureau of the General Assembly which will be responsible for taking note of the votes, verifying them and then drawing up the minutes and signing them. All other members of the Association may be present online in the form of a ZOOM teleconference. The link to the ZOOM platform will be provided in due course.

We invite all of you to take part in our assembly. You may join by zoom platform, which gives the opportunity to meet each other online free of charge. The agenda of the meeting as well as bio of Keynote Speaker Sophie Moonen can be found below.

If any member is unable to take part in the teleconference by ZOOM due to technical problems, please let us know as soon as possible so that we can send you all elements that will enable you to express your vote in writing.

If you wish to give a proxy to be represented by another member of the AEA-EAL, please let us know in advance.

IMPORTANT NOTE: all votings will be in electronic form. To participate in votings, you need to download zoom application (free of charge).

Should you have any questions, please do not hesitate to contact us.

Board of Directors

The agenda:

17.00 – 19.00 (CET)

1. Opening remarks, technical information
2. Keynote address
3. Items for approval or discussion

A. Items for approval:

– Minutes of the Annual Ordinary General Assembly of the Association held in Edinburgh on 1 June 2019,
– President’s Report for the year 2019
– Treasurer’s Report on the financial year ended 31.12.2019
– Annual accounts as at 31.12.2019,
– Discharge to the directors for exercise of their mandates in 2019
– 2020 budget

B. Items for discussion:

– Information of the President on activities undertaken or planned for 2020
– Miscellaneous

Keynote Speaker
Sophie Moonen

Sophie is Head of Unit (COMP.F.2) in the European Commission, Directorate General for Competition. She practiced law at Wilmer, Cutler and Pickering (Brussels and Washington, D.C. offices) from October 1996 until June 2002. At Wilmer, Cutler and Pickering she had a broad regulatory practice covering trade, antitrust and general matters of European law with a focus in the IT industry and financial services industry. She was also an associate in the Washington D.C. office of Morgan, Lewis & Bockius (Trade and Antitrust Section) from August 1995 until May 1996. Ms Moonen has been a member of the NY bar since 1999 and was a member of the Brussels bar until joining the European Commission in 2002. She is a magna cum laude graduate of the University of Liège law school and holds an LL.M. from the University of Michigan law school.

Unit COMP.F.2 deals with state aid in the field of transport in DG COMP’s Directorate F which is in charge of competition policy in the field of transport, post and other services. It covers the aviation, rail and maritime sectors. Working with the Unit gives an opportunity to learn more about state aid policy, to work with many interesting state aid cases in these sectors and to understand how its work links in to the wider effort to make transport markets work better. The Unit is also part of the wider State Aid Network within DG COMP, whose mission it is to develop and enforce state aid policy and rules in all sectors in the EU.

Webinars on Covid-19

Napisane przez AEA - EAL w dniu 2020-05-24. Opublikowano w News. Zostaw komantarz

AEA-EAL organized and co-organized two online events dedicated to Covid-19 crisis and its impact on justice, human rights and law.

The first one held on May 16 was an international online conference for Russian-speaking audience, organized together with the Human Rights Institute of the Al Farabi State University in Nur Sultan, Kazakhstan, International Commission of Jurists in Geneva as well as with other partners. The topic of the conference was “Law and Human Rights in a Pandemic”. With over 150 participants from 17 countries it was a huge, all day event covering four main sessions:

New approaches to legal education and advanced training of lawyers;
Implementation and protection of human rights in a pandemic and quarantine;.
Administration of justice in time of restrictions;
The impact of a pandemic on compliance and other legal consequences.

Maria Ślązak, AEA-EAL President, greeted participants in her welcoming speech and shortly presented AEA-EAL’s project held in Almaty, Kazakhstan in 2018. In the second session she spoke about growing domestic violence during Covid-19 pandemic and necessity of immediate reaction of governments to save victims. Our other speakers were:

Veronika Hoerrer, Head of International Department of the German Federal Bar (BRAK), who spoke on experiences related to justice in times of Covid-19,
Mindaugas Kukaitis, Vice-President of the Lithuanian Bar Association, who spoke on protection of human rights during pandemic and quarantine in Lithuania,
David Viader, advocate from Barcelona, who presented information on court proceedings in Spain after March 14, 2020,
David Asatiani, President of the Georgian Bar Association, who talked on human rights in the time of restrictions, and
Maria Bonon, advocate of the Paris Bar, , who spoke on the activities of a lawyer in a state of emergency and economic consequences of the crisis in France.

The conference has received very positive feedback from participants.

***

The second event was held on May 18 as an online, two-hour seminar on “Impact of Coronavirus on Justice – overview of the situation in various countries” with five areas discussed by speakers and participants:

Experiences of chosen countries with the lockdown in Justice;
Pre-trial isolation and the right to defence; access to a lawyer of detainees, suspects and accused persons deprived liberty;
Victims of domestic violence and their rights in the context of access to justice – existing legal standards and current practice (experience of lawyers);
Legal privilege in COVID-19 pandemic times – a value in serious danger?
Closer or more distant justice? Pros and cons of application of new technologies in access to justice.

Over 50 participants received enhanced knowledge from our specialists: Professor Marcelo Castrogiovanni, University of Buenos Aires, Monique Stengel, AEA-EAL immediate Past President, Paris, Vladimir Palamarciuc, Past President of the Moldavian Young Lawyers Association (MYLA), Moldova, Juan Núñez, AEA-EAL Past President, Barcelona and Tina Fernandez, specialist in IT and technology, London. The seminar was moderated by Ph. D. Piotr Chrzczonowicz, University of Nicolaus Copernicus in Toruń.

The seminar was highly appreciated by participants.

Access to Justice in Covid-19 Pandemic Times (introduction to discussion)

Napisane przez AEA - EAL w dniu 2020-05-23. Opublikowano w Articles.

May 23, 2020

Ph. D. Piotr Chrzczonowicz

A discussion concerning main identified fields of risk to existing (and preferred) standards in relation to the access to justice should be preceded by some reflections of a general nature.

Access to justice must be treated as a basic principle of the rule of law (pandemic situation could be a temptation for authorities to soften this principle, to treat it in an instrumental way)

Access to justice is, in a country based on the rule of law, a general and collective procedural safeguard for anyone seeking justice, including a number of specific procedural guarantees, which are based on human rights protection standards expressed in international, EU and domestic law. This safeguard is available to every individual as well as every specific groups of persons in an equal and non-discriminatory manner. It is provided by a variety of legal and institutional solutions (e.g. exemption from legal costs, access to professional legal assistance – legal aid, right to information, right to interpretation and translation) [1] [2].

A lack of true respect for neuralgic civil human rights (in the sphere of justice) means a lack of access to justice (pandemic situation caused that the access to justice had been troubled and limited in some terms)

There is no real access to justice if, in the normative or practical sphere, an adequate level of respect for human rights – individual or group rights – is not ensured (not achieved) by public authorities. ‘An adequate level of respect for human rights’ means the existence of legal regulations of a good quality, honest conduct of state bodies – investigative and judicial bodies in relation to humans involved in justice system (for instance, proper, scrupulous performance of their duties and tasks, delivering a reliable information about rights of persons facing justice, etc.). Also, there is no real access to justice without effective functioning of the system of aid institutions organized or supported by state authorities (like points of free legal aid for people, institutions providing specific assistance to victims of crime)[3].

#Stay at home (and possibly suffer from domestic violence) – the influence of the COVID-19 pandemics on the development of domestic violence phenomenon is observed. Weaknesses of access to justice concerning domestic violence matters in times of pandemics are observed too.

Domestic violence certainly isn’t a new phenomenon but it provides new challenges in the context of a current pandemic and so-called lockdown restrictions [4] [5] [6]. In Poland, the implementation of the slogan ‘#stay at home’ (as a part of the prophylactic, anti-COVID-19 campaign) has resulted, among others, in deepening of the problem of domestic violence [7]. New outbreaks of domestic violence have been observed. And there, where violence has been occurred earlier, this phenomenon turned to be more intensive [8]. Victims of domestic violence have lost many possibilities of legal and factual actions [9]. Due to restrictions on the work of courts, the previously initiated proceedings for eviction of domestic tyrants (civil ones) have slowed down. On the other side, some new legal instruments to help victims of domestic violence have been created (in Poland, new anti-violence law was passed some weeks ago, on the 30^th of April, 2020). This law enables the application of the instant separation of violence offenders from their victims (quicker procedures, more assistance and protection to victims) [10]. But, of course, this is the regulation – another issue is the practice (which quality and effectiveness largely depend on criminal policy priorities specified by proper bodies of the state).

COVID-19 pandemic has become a source of serious challenges facing justice systems and justice-involved people (in domestic, transnational and international dimensions)

The COVID-19 pandemic situation, which is, in fact, sudden and unprecedented, has become a source of specific, serious challenges for justice systems in every rule of law country in the world, leading to questions and concerns about the efficiency of their functioning, their ability to maintain the existing relevant standards of the rule of law in different types of proceedings, their ability to deal with new problems, such as the large-scale use of new technologies to carry out their tasks, or their readiness to fulfil health and safety conditions for participants in different types activities which must take the form of direct human contact [11].

The abruptness and dynamics of the pandemic situation have compelled the authorities in many countries to introduce specific legal regulations ‘for pandemic times’. Due to the rush – such regulations aren’t always well-prepared from the technical and factual point of view, sometimes chaotic, difficult to be transparently interpreted and applied in practice, raising objections as to their compliance with the constitutional regulations of states or with the EU or international standards of law expressing the rule of law principle [12] [13].

E-justice and e-access to justice aren’t the distant future but they are not universal and similarly developed in every country. The COVID-19 pandemic in many countries has de facto started a revolutionary change in justice systems, consisting in the need to modernize them closely related to the use of new technologies, including those that facilitate or even make possible for a person the access to justice [14]. Yes, the symptoms of modernization have already been visible in justice systems before, but the current pandemic is a factor which accelerates clearly of the processes that are still ongoing, and their directions open discussions on bringing together the effectiveness of the functioning of the justice system with respecting of previously adopted standards concerning the access to justice by the interested parties (persons).

Globally, in many cases a pandemic shock was for justice like a sand spill in the rotating modes of a working machine. A number of justice systems slowed down, current works of their administration has been divided into those with more priority and those that can wait. This slowdown was made possible formally by special legal regulations of ‘pestilence times’ (e.g. suspension of limitation periods, deletions of dates of court hearings and other procedural activities as well as postponement of these activities). This slowdown occurred in connection with the necessary reorganization of the current functioning of justice systems – i.e. with regarding limitations that affected the current work rhythm of e.g. the police, prosecutors, judges or lawyers, but also their administrations: police stations, public prosecutor’s offices, courts’ administrations and legal offices [15] [16]. Moreover, it was connected with the necessity to adapt the employees of the justice administration and auxiliary apparatus to perform their duties remotely, outside their normal places of work, which was not always possible or entirely effective (not every case file could be kept at home, not every employee is advanced in using devices from the area of new technologies, not always – outside the place of work – it is possible to have access to internal IT systems of the administration of justice with data relevant to the case, also – safe and confidential communication – for instance with a client – is not always possible outside the place of work, outside the office). For example, in Poland, due to a pandemic situation, no courts’ hearings or courts’ open sessions were held for a longer time. The planned dates of hearings and open sessions have been deleted, at first – till the end of April, then, at least, until the end of May. Another example: the prosecutor’s office instructs about the rights of the parties – victims of crime and suspects, but it’s not very easy to exercise some of these rights effectively (e.g. the right to review the files of completed preparatory proceedings became, to a certain degree, not obvious in many public prosecutor’s offices).

Many people have been experienced and they are experiencing by difficulties in undisturbed access to justice, and the pandemic makes these difficulties more serious. Certain standards in this area, created in ‘normal’ times (for ‘normal’ times), do exist, but the pandemic shock has made that there emerged troubles to apply them. It is not always easy to obtain the assistance of an emergency lawyer in the procedure of so-called ex officio legal aid. The contact of a person deprived of his/her liberty (being in pre-trial detention, being a prisoner) with his/her lawyer has been subjected to restrictive conditions which may pose a threat not only to the value which is a freedom of contact, but also to the value which is a confidentiality of communication between a lawyer and a client (i.e. legal privilege) [17]. The access to a lawyer of a person in detention may be formally complicated. To exemplify it, in Poland, the Prison Service requires a certificate of health from a lawyer who wants to meet his/her client in a prison [18]. By the way, the increase in the use of forms of remote communication between the lawyer and his/her client has boosted a risk of violating the secrecy of such communication by state authorities willing to apply surveillance methods and instruments. There have appeared also some quite new challenges, such as the access to justice for specific subjects – coronavirus-infected persons (suspects, defendants, victims or other interested persons). For example, in Toruń, a suspect infected by coronavirus was interrogated through a videoconferencing system with devices installed in a public transport bus rented for this purpose from city public transport enterprise (interrogation was without the participation of a lawyer and it was linked to the proceedings concerning the issue of pre-trial detention).

The progressive ‘technologicalisation’ of access to justice may mean that the difficulties of such access will affect technologically excluded persons, who will be required – without any alternative in this respect – to use new technologies (e.g. sending procedural letters in their matters via e-mail) [19].

It appears that the exiting and required standards of access to justice often ‘hamper’ activities considered to be effective in preventing the spread of COVID-19.

In COVID-19 pandemic times, new technologies in access to justice seem to be not only comfortable, but also necessary. Institutions in the sphere of justice system are concrete places, but concrete places are less important things than concrete services which are supplied to people by such institutions. Mentioned services create justice and this is exactly what society needs and expects [20]. Of course, the application of new technologies opening justice in various situations cannot be chaotic and it needs proper, clear legal frames (if such frames haven’t been established yet). A usage of new, modern technologies to ensure well-functioning and flexibility of justice systems should be safe. Technological infrastructure, recommended devices and communication channels must allow to protect different types of data during the distant contact with representatives of investigative and judicial bodies. For instance, there arise questions on subjects (institutions) responsible for processing of plenty of data connected with the access to justice, how this processing will be controlled and who will be entitled to get the access to such data. Another question is on the quality of ‘shields’ giving effective security from cyberattacks and from harmful consequences due to such attacks.

Access to justice – a new face of the procedural safeguard in pandemic times (some final reflections and postulates)

Legal and practical solutions in the sphere of access to justice safeguard, prepared for pandemic times, should be compatible with standards of the rule of law and this compatibility should be monitored.
Standards of access to justice should be equal for everyone who looks for it (i.e. for free people, people being in pre-trial detention, prisoners). It seems to be obvious in theory but, however, it isn’t obvious in practice.
People seeking justice in institutions which demand from them a distant contact should have right to access to technological devices and communication technologies ensuring them safe forms of contact (protecting their privacy, personal data, contents of sending documents).
New face of access to justice means also a new face of functioning of many lawyers in their professional life (contacts with clients, contacts with investigative and judicial bodies, new challenges in processing and protection of various types of data). Many lawyers will need advanced education in new technologies to do their work (routine professional activities). Safe professional relations with coronavirus infected clients (even if the infection or illness is potential) seem to be a special challenge.
Domestic violence during pandemic seems to be a growing problem. Victims of domestic violence – a special category of victims (i.e. victims which can be characterized as vulnerable and sensitive ones) will need more external assistance, among others in effective access to justice (including contact with a lawyer, launching of criminal or civil proceedings, representation or support in such proceedings). In some countries (at least) new legal regulations establishing help instruments addressing to victims will be needed. However the law – important and necessary – should be completed by effective practice in its application.
Access to justice demanding more new technologies and means of distant communication could be – on the one hand – easier but – on the other hand – not for all interested people (not effective access to access to justice for technologically excluded and marginalized persons).
Access to justice, demanding more new technologies and means of distant communication, could be a value more exposed to surveillance from state services as well as to dangers of cyberattacks committed by cybercriminals.

The above-mentioned thoughts need to be discussed. Such discussion, I hope, will bring us a bit closer to answer the question on the value of access to justice in current pandemic times. Will this new and unprecedented situation make for people the justice closer or more distant?

References:

[1] Francesco Francioni (ed.), Access to Justice as a Human Right, Oxford University Press, Oxford – New York 2007 [passim].

[2] Handbook on European law relating to access to justice, European Union Agency for Fundamental Rights and Council of Europe, Publications Office od the European Union, Luxembourg 2016, pp. 15 – 22.

[3] V. Lima, M. Gomez, Access to Justice: Promoting the Legal System as a Human Right [in:] W. Leal Filho (ed.), Encyclopedia of the UN Sustainable Development Goals, Springer Publishing 2020, pp. 1 – 2, 3 – 4, 7 – 8.

[4] A. Taub, A New Covid-19 Crisis: Domestic Abuse Rises Worldwide. Movement restrictions aimed to stop the spread of the coronavirus may be making violence in homes more frequent, more severe and more dangerous, The New York Times, April 6 (updated: April 14), 2020, https://www.nytimes.com/2020/04/06/world/coronavirus-domestic-violence.html [17.05.2020].

[5] M. Godin, As Cities Around the World Go on Lockdown, Victims of Domestic Violence Look for a Way Out, Time, March 18, 2020, https://time.com/5803887/coronavirus-domestic-violence-victims/ [17.05.2020].

[6] C. Bettinger-Lopez, A. Bro, A Double Pandemic: Domestic Violence in the Age of COVID-19, Council of Foreign Relations, May 13, 2020, https://www.cfr.org/in-brief/double-pandemic-domestic-violence-age-covid-19 [17.05.2020].

[7] A. Wądołowska, Locked down with a violent partner: domestic violence soars in Poland during coronavirus pandemic, NFP [Notes from Poland], April 13, 2020, https://notesfrompoland.com/2020/04/13/locked-down-with-a-violent-partner-domestic-violence-soars-in-poland-during-coronavirus-pandemic/ [18.05.2020].

[8] I. Le Page, Fears of domestic violence rise as millions confined over virus, CTV News, March 28, 2020, https://www.ctvnews.ca/health/coronavirus/fears-of-domestic-violence-rise-as-millions-confined-over-virus-1.4872437 [18.05.2020].

[9] M. Nightingale, J. Hofman, S. Grand-Clement, Resources for Covid-19 abuse victims ‘insufficient’, EUobserver, London, 8 May, 2020, https://euobserver.com/opinion/148294 [17.05.2020].

[10] Sprawcy przemocy domowej będą natychmiast izolowani. Sejm przyjął ustawę antyprzemocową, Gazeta Prawna.pl, 30.04.2020, https://prawo.gazetaprawna.pl/artykuly/1473817,sprawcy-przemocy-domowej-beda-natychmiast-izolowani-sejm-przyjal-ustawe-antyprzemocowa.html [18.05.2020].

[11] See, for instance, documents gathered by CCBE and available at: https://www.ccbe.eu/actions/covid-19/#c3165 [18.05.2020].

[12] The impact of Covid-19 on human rights & the rule of law – Council of Europe standards (part 1 of 2), webinar, https://www.youtube.com/watch?v=ZsehViuAWHE&feature=youtu.be [18.05.2020].

[13] The impact of Covid-19 on human rights & the rule of law – Council of Europe standards (part 2 of 2), webinar, https://www.youtube.com/watch?v=ac3-t99bLyc [18.05.2020].

[14] R. Kuybida, How COVID-19 Forces Courts to Operate Creatively Under New Circumstances, Reanimation Package of Reforms, https://rpr.org.ua/en/news/how-covid-19-forces-courts-to-operate-creatively-under-new-circumstances/ [18.05.2020].

[15] Impact of the COVID-19 virus on the justice field, European e-justice, https://e-justice.europa.eu/content_impact_of_the_covid19_virus_on_the_justice_field-37147-en.do [18.05.2020].

[16] Management of the judiciary – compilation of comments and comments by country, Council of Europe, European Commission for the Efficiency of Justice (CEPEJ), https://www.coe.int/en/web/cepej/compilation-comments#Poland [18.05.2020].

[17] See, for instance: E. R. Bailey, Attorney-client privilege should not stop at the prison gate, Buckley LLP, Lexology, https://www.lexology.com/library/detail.aspx?g=788285e3-71ac-4af4-abba-36c6cefb3c8d [18.05.2020].

[18] Koronawirus: Sytuacja w więzieniach budzi poważne obawy. RPO do Służby Więziennej, Rzecznik Praw Obywatelskich, https://www.rpo.gov.pl/pl/content/koronawirus-rpo-sytuacja-w-wiezieniach-budzi-powazne-obawy [17.05.2020].

[19] R. Smith, Technology and Access to Justice: a help or hindrance?, March 20, 2019, Law technology and Access to Justice, https://law-tech-a2j.org/digital-strategy/technology-and-access-to-justice-a-help-or-hindrance/ [17.05.2020].

[20] J. Richards, How will the justice system withstand the coronavirus pandemic? When courts close more fully, consequences will reach every corner of society, Prospect, March 18, 2020, https://www.prospectmagazine.co.uk/politics/how-will-the-justice-system-withstand-the-coronavirus-pandemic-covid-19-outbreak-courts-democracy-law [18.05.2020].

Webinar on impact of Covid-19 on access to justice

Napisane przez AEA - EAL w dniu 2020-05-18. Opublikowano w Past events.

18 May 2020 (online)

Our second seminar dedicated to an English-speaking audience took place on May 18 at 17:30 CET on “Impact of COVID-19 on the access to justice – a general overview of the situation in various countries throughout the world”.

During the seminar four issues were discussed:
– Pre-trial isolation and the right to defense. Access to a lawyer for detainees, suspects, and accused persons deprived of liberty in investigation and judicial proceedings. Do the justice bodies respect demanded legal standards and do everything work well?
– Victims of domestic violence and their rights in the context of access to justice – existing legal standards and current practice (experiences of lawyers).
– Legal privilege in COVID-19 pandemic times – a value in serious danger?
– Closer or more distant justice? Pros and cons of application of new technologies in access to justice.

The panel moderator was Ph. D. Piotr Chrzczonowicz, attorney and law and academic from Poland; speakers:

Professor Marcelo Castrogiovanni, advocate, University of Buenos Aires, Argentina
Monique Stengel, advocate, Treasurer of the Federation of European Bars, AEA-EAL immediate Past President, Paris, France
Vladimir Palamarciuc, advocate, Past President of the Moldavian Young Lawyers Association (MYLA), Chisinau, Moldova
Juan Nunez, advocate, AEA-EAL Past President, Barcelona, Spain
Tina Fernandez, barrister and solicitor, specialist in IT and technology, London, United Kingdom

You can find below presentations for download:

Piotr Chrzczonowicz (moderator) – introductory remarks – final

Piotr Chrzczonowicz (moderator) – slides

Marcelo Castrogiovanni

Access to Justice in Covid-19 Pandemic Times in Spain

Napisane przez AEA - EAL w dniu 2020-05-18. Opublikowano w Articles.

May 18, 2020

Juan Nunez

The terrible Covid-19 pandemic in which we are involved, not only in Spain, but throughout the world, will have relevant legal consequences, as we already all know. The inevitable economic crisis derived from this pandemic will affect several legal aspects and principles.

After my opinion, the most affected will be

the general theory of contracts,
the insolvency situations and
the labor relationships

Referring to the theory of contracts, a lot of legal relationships will be affected because it will very difficult for one of the parties to continue complying with an agreement signed under circumstances having radically changed.

A huge number of contracts will be under this situation.

Without forgetting the principle of “pacta sunt servanda” (agreements have to be fulfilled) legal remedies will have to fit the principles of “force majeure” and “rebus sic stantibus” (restoration of an agreement that has turned unbalanced by unpredictable events), to settle these issues.

On the other hand, and due to this situation, a lot of companies and individual entrepreneurs will come into unavoidable financial difficulties. For these cases, our law has rapidly react retarding any deadline to lodge any proceeding of insolvency until the end of the year, to allow the entrepreneurs to try to recover their business.

Finally, all this situation affects employment; thousands of people losing their work and claiming their rights. In spite of the measures that have been implemented to suspend or reduce work, a lot of business will not be able to resist. Courts, as all other activities that can concentrate lot of people, has been almost entirely stopped, and only urgent matters are to be attended. Access to justice has been organized for when the state of alarm will be over, and some measures have been adopted to manage with all the conflicts that are arising during this period without normal working Courts.

The measures to organize the Courts in order to confront the effects of Covid–19 are about (1) procedural measures, (2) insolvency measures and (3) technological measures.

The goal of the procedural measures is to discharge concentration of lawsuits to be filed. The most polemic procedural measure implied is to active the period between 11 and 31 August, while August has been always Court holidays. Additionally, all the time schedules and deadlines of the different matters and procedures that may have been suspended will, either re-start entirely again, or be enlarged considerably, to avoid the collapse, and to allow to attend, until the rest of the year 2020, some priority matters, like:

Issues with minors
Conflicts on stoppage of mortgages or rentals.
Conflicts on public aids or subsides related to pandemic.
Conflicts on labor relations, due to pandemic measures.

2. On insolvency measures, the law wants to give an especially long time bar period to organize again and to refloat the business until end of the year 2020. During this lapse of time, no insolvency claims from creditors will be accepted, giving time to the debtor to file his own insolvency proceedings.A special time bar of one year has been adopted to allow debtors to negotiate once again their payment conventions.During one year after termination of the estate of alarm, only urgent issues will be solved.

3. Finally, the law implies technological measures to reduce presence organizing hearings on-line, and reducing present formalities as much as possible.

This means the implementation of technological tools at any court, which is still a pending challenge; al least, it will be a benefit that will remain. In general, rules have been implemented to refrain the effect of the wave of proceedings, in the confidence to speed the proceedings, and to avoid physical contact.

However, the number of proceedings will be extremely high; even if at this moment the tribunals only work in urgent matters, the filing of lawsuits is possible; some 2.500 proceedings have been already filed at Barcelona’s Courts.

And these new proceedings, and the new ones during and after the state of alarm, arrive to a judicial system which is already collapsed. Nowadays, before the pandemic, hearings in some tribunals were already being appointed over six to nine months, or even more.

It is often said that late justice is not justice, and therefore, the access to justice will be not satisfactory.

Some rules implemented for the pandemic effects, oblige consumers and providers of services and goods to try to reach agreements for adaptation of their relationships to the situation for 60 days before resolving, when the agreement could or may not be fulfilled properly (for instance, closed fitness clubs, closed learning centers, concerted weddings and celebrations, lack of deliveries). It is clear that countless lawsuits will be filed because of contractual relationships, in which the parties have not reached an agreement.

An already collapsed justice cannot afford this new situation, and it is time for intensively promote mediation and arbitration.

We, lawyers, have to lead the way to provide justice by promoting agreements out of courts between the parts in conflicts. It is clearly time now to let mediation and arbitration display their advantages. It will be the only way, in most of the cases, to obtain not only justice, but satisfactory results for the parties.

We have to keep in mind, however, that these ADR means should be a choice and not a necessity, since the citizen shall have the right of access to justice; of course, we are confronted to an extraordinary and unpredictable situation, but the citizen will suffer more than if the system were not already so overloaded. This happens when justice is not a priority for the governors.

The situation of criminal proceedings is quite different; of course, all these rules do not affect to proceedings in which fundamental rights could be affected. For those files, courts have maintained their activity.Procedures of habeas corpus, incidents with prison conditions and permissions, gender violence, and all non-delayable issues are treated.

However, there are some issues affecting substantial rights, like the provision implemented by the Royal decree declaring the state of alarm, by suspending the deadline of prescription of all acting’s and rights, without further clarification: the problem is that, since no more clarification was made, we do not know if this suspension means an enlargement of the statute of limitation of delicts. In fact, it should not, since the access of justice during that time is possible for urgent matters, and because this interpretation would affect constitutional rights, but the debate is open.

International online conference in Russian: „Law and Human Rights in a Pandemic”

Napisane przez AEA - EAL w dniu 2020-05-16. Opublikowano w Past events.

16 May 2020 (online)

“Law and Human Rights in a Pandemic” Experts from Kazakhstan, Belarus, Belgium, Georgia, Germany, France, Kyrgyzstan, Lithuania, Poland, Ukraine, Russia, Spain, Switzerland, Turkey, and the United Kingdom in a lively discussion presented to over 150 participants the most important issues:

– New approaches to legal education and advanced training of lawyers.
– Implementation and protection of human rights in a pandemic and quarantine.
– Administration of justice in times of restrictions.
– The impact of a pandemic on compliance and other legal consequences.

AEA-EAL President greeted participants with a short presentation of our past project held together with Kazak lawyers. Then she spoke in the second panel on the growing issue of domestic violence during the Covid-19 pandemic.

A new Code of Conduct for the Spanish advocacy

Napisane przez AEA - EAL w dniu 2020-05-14. Opublikowano w Articles.

May 14, 2020

Ph. D. Nielson Sánchez Stewart

On May 9th, 2019, and after more than three years of work, the General Council of Spanish Lawyers, Consejo General de la Abogacía Española (CGAE), the body that coordinates the activity of the 83 Spanish Bar Associations, approved a new Code of Conduct to take effect nationwide.

It was a necessary step to update the regulation of the Legal Profession. That the profession is constantly undergoing profound changes is not a phenomenon that goes unnoticed and the current changes are perhaps the most important ones in its long history. The considerable increase in the number of practitioners, the sometimes insufficient preparation of those who begin their practice, the increase in the proportion of women who embrace the legal profession, the elimination of the barriers that traditionally existed to prevent or hinder the practice outside the borders are causes, among other factors, of this transformation. These changes and the convergence of counselling and advocacy activities with other professionals of different views, backgrounds and training determined the need to carry out a profound revision of the norms that regulate the profession, norms that for years remained unchanged and were transmitted from generation to generation in the privacy of law firms.

The express process of formulation of the regulation began several decades ago. The former Assembly of Deans of the Council in a session held on May 28th and 29th, 1987 approved the so-called „Deontological Standards of Spanish Law”. In another Assembly of Deans of June 29th, 1995, some modifications were introduced and the body was called the „Code of Deontological Conduct”, the first of the Spanish Legal Profession.

The codification of the so-called „standards of behaviour” has been debated, doubting their legitimacy, arguing that they violate the necessary independence and have limited effectiveness. In formulating these criticisms, it is assumed that they are not authentic legal norms, but rather moral or social recommendations. This is not true and has already been declared by the Constitutional Court, which has classified them as strictly legal. It is true that they have an ethical or moral inspiration, but that is common to other legal provisions, such as the Penal Code, without going any further.

The organization of the profession has changed and it has become necessary to adapt the rules of behaviour to these changes. Many of the 1987 norms were becoming prematurely obsolete and in 2001 a new General Statute of the Spanish Legal Profession was approved, which repealed the one from 1982. Many venerable institutions disappeared upon the introduction of the rule of law and the new conception of a Lawyer, not only as an auxiliary to justice, but as one of its main actors and its inclusion in society to provide a service of public interest and under free competition.

In 2002, a Code of Conduct was approved, replacing that of 1987, which has been in force until now. However, in the almost twenty years that have elapsed, there was a need to adapt it to the times.

The CCBE, constituted as the highest representative body of the Legal Profession before the institutions of the European Union, had approved a „Code of Ethics” at its plenary session in Strasbourg on October 28th, 1988, modified at a session held in Lyon (France) on November 28th, 1998. The purpose of this Code was to establish rules of conduct in cross-border professional practice. Said Code was „assumed” by the CGAE. In accordance with the provisions of paragraph 1.3 of the Code, its objectives were to define „common rules applicable to all Lawyers of the European Union and the European Economic Area in their cross-border activity, whichever the Bar Association they belong to”.

This Code – although in force in Spain – upon the assumption by the General Council has a restricted scope of application – ratione materia is the expression it uses – to cross-border activities.

The codification process has not finalised yet and today a phenomenon is underway that is inverse to the trend of localization in infra-national areas of ethics. In the European Union, work is currently being done on the drafting of common Codes of Ethics that will be applicable, at least, in countries whose legal systems come from a common root, notably Italy, France, Portugal and Spain. This good will and desire should be used not only to formulate general principles that are already sufficiently set, but also to try to conjoin new ones taking advantage of the conjunction of international experiences that can serve as basis for comparison as a study method.

In parallel, the CCBE periodically reviews the rules applicable to cross-border practice, which, while still exceptional, will inexorably increase as the European Union and the European Economic Area expand and international traffic increases.
Attempts to create a single Code of Ethics applicable, ideally, to all Lawyers in the world or at least to all Lawyers practicing within the Union, face the natural scruples of countries that have maintained traditional criteria, who have resisted their revision to bring them to a common heritage. A good example turns out to be the professional secret that in some countries, Spain among them, has a public origin closely linked to the special function that the Lawyer develops in society both in the defence aspect, as guarantor of that fundamental right, and in the variant of legal adviser whose activity is part of the right to confidentiality. On the contrary, in other countries, professional secrecy is nothing more than an obligation that arises from the specialties determined by the convention, contract or agreement that discipline the relationship between Lawyer and client. Another example is the remuneration system, with acceptance or rejection of the quota litis agreement, the division of fees and payments for attracting customers. Despite this resistance, it is inevitable that in a globalized world, the application of general solutions will be sought, solving in an intelligent and generous way the difficulties that occur today. Thus, the confidentiality of correspondence between Lawyers, which in some countries is absolute, as in Spain, in others only applies if that attribute is referred to in its text, as occurs in the United Kingdom, and in others, such as Italy, it also applies, unless otherwise indicated in the correspondence. In these times we live in, when correspondence circulates daily outside borders, such a paradoxical situation cannot last long.

The synergies of the Lawyers of the surrounding countries must be used to jointly advance in the formulation of updated norms and not only insist on the formulation of already accepted principles.

In 2016 work began on this new Code of Conduct by the Deontology Commission of the General Council of Spanish Lawyers. The alternative of approving a totally new text or, on the contrary, introducing certain modifications to the current one was considered: this second possibility was chosen so as not to lose the valuable collection of administrative precedents and judicial decisions.

In the elaboration of the new Code, the then current General Statute of the Spanish Legal Profession and the project that was also approved by the Council pending ratification by the authorities, have been taken into account. Although this project is not yet a standard since the concurrence of the administration is required, it does reflect the feeling of the profession and it is hoped that once the difficulties experienced in Spain in recent years have been overcome, it will not take too long to be finally approved.

The existence of the Code of Conduct – as long as they do not restrict competition and is established for the benefit of service consumers and society in general – is not objectionable to competition authorities. This has been stated by the former Competition Court in its famous „Report on the free exercise of professions, Proposal to adapt the regulations on collegiate professions to the free competition regime in force in Spain in June 1992” that gave rise to an important modification in the Law of Professional Institutions.

Already in May 2003, the European Commission announced the preparation of a proposal for a Directive on services in the internal market that would be released before the end of that year. Paragraph 39 of the proposed Directive encourages Member States to adopt uniform codes of conduct. This Directive is known as the Bolkestein Directive which included an important phrase: “Member States, in collaboration with the Commission, should be expected to encourage stakeholders to draw up codes of conduct at Community level, especially with the aim of promoting quality of services taking into account the peculiarities of each profession. The codes of conduct must be in accordance with Community Law, and especially with Competition Law. They cannot be contrary to the binding legal provisions on ethics and professional conduct that are in force in the Member States.”
The evolution of standards of conduct will continue because it will be necessary to adapt them to the new times that are characterized by a different legal profession than the traditional one. Extrajudicial and preventive activity is more and more important, the scope of work is constantly expanding and encompasses territories regulated not only by different laws but by different ethical standards; the conflict between individuals has ceased to be in many cases the fundamental field of work since today public administrations have invaded everything. Finally, relations with other professionals who carry out activities similar and sometimes identical to those carried out by the Legal Profession are becoming more frequent every day, the preferential dedication of which is tax law, urban law and labour law. The practice of the profession has changed in the sense that each day it is more common that one no longer configures oneself as an independent professional, but rather as an employee for another office, for a company or for a private individual who is not from the profession. In this way, one will become a lawyer for a single client. At the same time, it is increasingly observed that organizations of collective representation or with multiple interests provide through a professional, legal advice, consumer groups, unions, public bodies. The relationship with these third parties who are not exactly clients, but rather members of the group for which they provide services, must be subject to ethical regulations.

On the other hand, the areas of legal advice, which are common to the legal profession and to other professionals, have determined the existence of so-called multidisciplinary or multiprofessional law firms that should be subject to specific regulation.

The deontological norm – legal as it has already been insisted – is of obligatory compliance and its violation brings with it a sanction. There is no doubt about this in Spain. There are, however, some peculiarities that characterize it and which have been the subject of judicial debate and analysis by the Courts.

There is no law that regulates the legal profession in our country. The rules are spread across many scattered texts, some of which do not have a category of law. The one that regulates the Bar Associations does not contain a table of misdemeanours or a list of sanctions, but attributes to these bodies in their territorial scope the function of: „… practicing disciplinary authority in the professional and collegiate order”

The violation of the principle of legality of the ethical standards contained in the Codes has therefore been discussed, because they would not in themselves define typical conducts and because they do not meet the requirements of publication in an official journal. Legality, typicality and publicity, are conditions applicable to the punitive and restrictive norm of rights. It has been said that this lack of publication in an official paper would deprive them of compulsory force and of authentic legal status. The Constitutional Court has indicated that there is a relationship of special abidance of the collegiate with their Bar Association, which is precisely what allows reducing the requirement of reserving strict law. Reduce it only, but not do without it. It is necessary for the sanctioning regime to have a legal basis even if the infractions and sanctions are not defined in detail in the law. It is therefore possible that, due to this special relationship of dependency, assumed by the collegiate when applying for admission to the profession, that the actions and sanctions are not defined by law as long as the law refers them to a norm of lower rank.

Thus, the universally accepted principle of nullum crime nulla poena sine lege is respected today. The so-called typicality, the requirement that the conduct be perfectly defined in the norm, is satisfied in Spain with the so-called „predictability” of the norm in the face of the lex certa requirement, since this requirement is not violated by facts, omissions or punishable conduct „By means of undetermined legal concepts, as long as their concretion is reasonably feasible by virtue of logical, technical or experience criteria and allows foreseeing with sufficient security, the nature and essential characteristics of the behaviours constituting the typified infringement”.

The new Code is not the culmination of ideal standards to regulate the profession. It is the updating of the needs to face various current phenomena, such as payment for attracting customers, distribution of fees with third parties outside the profession, the limitations imposed on professional secrecy, the advertising of services, the substitution in performance and relationships that arise between who provided the advice and defence and who takes it over, the second opinion, the obligations to liquidate the funds received and many others.

We have already started work on its update.

18 May – online seminar „Impact of Coronavirus on Justice” – presentations of speakers

Napisane przez AEA - EAL w dniu 2020-05-12. Opublikowano w News. Zostaw komantarz

The Seminar took place on May 18 on Zoom platform. During the event a number of issues were discussed:

– Experiences of chosen countries with the lockdown in Justice

– Pre-trial isolation and the right to defense. Access to a lawyer of detainees, suspects and accused persons deprived liberty in investigation and judicial proceedings.

– Victims of domestic violence and their rights in the context of access to justice – existing legal standards and current practice (experiences of lawyers).

– Legal privilege in COVID-19 pandemic times – a value in serious danger?

– Closer or more distant justice? Pros and cons of application of new technologies in access to justice.

Panel moderator was Ph. D. Piotr Chrzczonowicz, attorney-at-law and academic from Poland; and speakers were:

Professor Marcelo Castrogiovanni, advocate, University of Buenos Aires, Argentina
Monique Stengel, advocate, Treasurer of the Federation of European Bars, AEA-EAL immediate Past President, Paris, France
Vladimir Palamarciuc, advocate, Past President of the Moldavian Young Lawyers Association (MYLA), Chisinau, Moldova
Juan Nunez, advocate, AEA-EAL Past President, Barcelona, Spain
Tina Fernandez, barrister and solicitor, specialist in IT and technology, London, United Kingdom