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Memoir
24.01.2017

Memoir

 

 

Attn.:      Chairman of the Parliament of the Republic of Moldova,

Mr. Adrian Candu

 

17.01.2017

 

 

 

Honourable Mister Chairman,

 

The Moldovan Bar Association is a key institution in the sphere of ensuring the operation of a state of law and respecting the human rights and fundamental freedoms. In order to achieve this strategic objective, the Bar Association develops partnership relations with public and private institutions both in the country and abroad, aimed to ensure the quality of the judicial process.

In this regard, the draft law on amendment and completion of Law no.1260-XV dated 19 July 2002 on the Bar was developed in 2015 and 2016. This draft was realised and coordinated by the Ministry of Justice in partnership with the Bar Association and the Council of Europe during several years, was positively endorsed by all state bodies and, consequently, was approved by the Government. The relevant amendments referred to the most significant aspects of the bar activities and were conceived namely to ensure good functioning of the legal profession, to improve the quality of services rendered and to guarantee the effective legal assistance to all categories of beneficiaries.

The relevant draft reckoned on the whole bar experience starting with the date of passing the Law on the Bar and had to improve a range of aspects of organisational nature. Meanwhile, the legislative amendments proposed had to contribute to assurance of the right to defence, protection of the legal interests of citizens and transition to a higher level of perception of the legal profession and the prestige of the institute of legal profession.

If referring to draft law on amendment and completion of the Law on the Bar, recorded in the Parliament of the Republic of Moldova under no.513 on 26 December 2016, the Moldovan Bar Association expresses their strong dissent from the amendment proposed in paragraph 2 of article 10 of the Law on the Bar and considers that such an amendment contravenes the domestic and international legislation and international practices, as well as creates a unique precedent existing in none of the member state of the European Union and related to access to the legal profession of the persons lacking the required professional training. Hence, the Association claims for excluding the proposed rules from this draft.

Particularly, the completion proposed in paragraph 2 of article 10 of the Law on the Bar compromises the requirements stipulated in paragraph 1 of article 10 of this Law and sets up not one but three exceptions of those four existing for access to the legal profession, thus creating an opportunity to admit to the institute of legal profession the persons lacking the required professional training and unblemished reputation. Hence, if such an amendment is passed, it will inevitably generate the risk of compromising the ‘right to defence’ stipulated in article 26 of the Constitution of the Republic of Moldova, the operation of the institute of legal profession in the Republic of Moldova and, as well, the fulfilment by such an institute of its fundamental role, i.e. effective and qualitative assurance of the right to access to justice, as guaranteed by article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The proposal mentioned, related to admission to the legal profession of the persons holding or having held the deputy’s seat, without any training or examination whatsoever, is unprecedented in the member states of the Council of Europe, the summarised legislation of which, concerning the requirements and existence of so-called ‘alternative ways’ of access to the legal profession, is published on the portal E-Justice. In this regard, supporting this amendment by invoking the example of Germany is incorrect and groundless, since Germany does not have higher legal education in general, however, this system of access presupposes examinations for admission to traineeship (1), mandatory two-year traineeship (subject to studying the legal disciplines) (2), and a final examination for admission to the legal profession (3). Meanwhile, the German laws do not provide, in general, any ‘alternative ways’ whatsoever (exceptions to the duty to pass two examinations and to have a traineeship) for getting an access to the legal profession. So, even if we take into account the experience of the German system, the persons lacking relevant studies and mandatory traineeship and having not passed relevant examinations cannot have access to the legal profession.

This initiative is in contradiction both with Recommendation of the Committee of Ministers of the Council of Europe no. R (2000)21 on the Freedom of Exercise of the Profession of Lawyer, and with the Basic Principles on the Role of Lawyers, adopted by the United Nations in September 1990 at the Congress on Prevention of Crime and the Treatment of Offenders.

Finally, the draft of completions to paragraph 2 of article of the Law on the Bar contravenes the fundamental principles that served as a basis for developing Law on the Conflict of Interest no.16 dated 15 February 2008 and Law no.133 dated 17 June 2016 on Declaring the Property and Personal Interests, if we take into account the fact that the annex to the Law on the Status of Persons Holding High Public Offices expressly stipulates that the deputy’s post is a high public office: hence, assuming that this draft is promoted by a group of deputies, some of whom did not manage to pass the qualifying examination for the legal profession earlier, they thereby try to create a lawful exception in their personal interests and use their status of deputies for tacit access to the legal profession without passing examinations, thus violating the requirements of article 11 of the Law on Declaring the Property and Personal Interests.

The recommendations of the international organisations, a member of which the Republic of Moldova is, the legal provisions and, as well, the domestic regulations do guarantee all qualified persons a free access to this profession, basing on the principles of competence and professionalism but without any discrimination on the grounds of gender, age, political opinion, religion, ethnicity, disability or any other criterion. But the ‘alternative way’ promoted in this draft does not ensure access to the legal profession due to professionalism of so admitted members, but, to the contrary, generates a state of injustice within the applicants and favours the former employees of certain state bodies.

The Bar Association has always favoured the idea to have a unique qualifying examination for the persons engaged in dispensation of justice, this meaning that judges, prosecutors or, as presently, lawyers, regardless of their qualification and experience, should not have access to such posts without examinations. We also consider that such an examination, based on the up-to-the-minute good international practices, should be organised as a grid test, including the use of electronic means, in order to exclude any ambiguities and subjectivism in the process of acceding to this profession.

Relying on the foregoing, we claim for speeding up the legislative procedures of hearing and passing the draft Law proposed by the Government in May 2016. We also express our complete dissent from any initiatives whatsoever that will generate benefits and exceptions for certain categories of persons. Favoured access to the legal profession will violate the principle of justice, will be a strong blow to the image and reputation of the institute of legal profession and will affect the current activities of lawyers.

We deem that the claims of the Bar Association will revive the Parliament discussions about the draft law on amendment and completion of the Law of the Bar so that the quality of services rendered will increase without allowing the Republic of Moldova to violate the positive duties related to assurance of the right to fair trial, as stipulated in article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Should the above legislative initiative of a group of deputies be supported by the Parliament, the Moldovan Bar Association will reserve the right to protest against such amendments, inclusively through calling a general strike of the lawyers in the Republic of Moldova.

 

Sincerely,

Nina Lozan,

President of the Bar Association