#11 We need to talk about the ECJ

On the 24th of January, the Day of the Endangered Lawyer, we conclude our podcast with a conversation with Margaret Satterthwaite. She is a professor of Clinical Law at New York University and was appointed as United Nations Special Rapporteur on the independence of judges and lawyers in October 2022. In this season, we have been looking at the challenges and dangers lawyers and human rights defenders face in their work in many different countries. We have been talking about Poland, Belarus, Turkey, Afghanistan, Colombia and the European Union. From harassments over identifications of lawyers with their clients to media pressure, SLAPP suits, imprisonments and violent attacks, we have talked about a range of threats lawyers face particularly in countries where the rule of law is fragile or where there is democratic backsliding, but not only there. In this conversation, Margaret Sattertwhaite offers a global perspective on the topic of our podcast, the defence of the defenders. We talk about global trends in challenges to the independence of lawyers, and we talk about structural problems that need to be addressed to defend the defenders around the globe.  Margaret's statement on the situation in Afghanistan can be found here: https://www.ohchr.org/sites/default/files/documents/issues/ijudiciary/statements/2023-01-17/202301-stm-sr-ijl-sr-afghanistan-day-endangered-lawyer.pdf

In the sixth episode of our rule of law podcast #DefendingTheDefenders with Deutscher Anwaltverein, we talk about the European Union and the state of the professional freedom of attorneys there. Within the jurisdiction of the European Union, there are a number of issues attorneys and their associations are worried about. The right to defence and legal services as well as the attorney-client-relationship is being targeted in an unjustified manner in areas such as the fight against money laundering or terrorism as well as in sanctions packages against Russian corporations in the wake of Russia's ongoing war against Ukraine, they say. EU institutions feel differently, however. They see the instruments under criticism as a proportionate way to address the professional freedom of lawyers as well as the right to defence on the one side and general interests on the other side. We talk to both sides to learn more about the concerns and the regulators' reasons. Our guests in this episode are James MacGuill, the president of the Council of Bars and Law Societies in Europe (CCBE) in 2022, and Florian Geyer, Head of Unit in the Directorate-General for Justice and Consumers at the European Commission. 01:55: Interview with James MacGuill 24:50: Interview with Florian Geyer

The fifth episode of #DefendingTheDefenders, the rule of law podcast by Deutscher Anwaltverein and Verfassungsblog, focuses on Colombia, where the situation for attorneys and human rights defenders is particularly dangerous. In recent years, hundreds of attorneys and human rights defenders have been killed, death threats against them are being made on a regular basis, and they have been under pressure by the government as well. The danger they face in their work is deeply connected to the issues they fight for and the clients they represent. In this episode, we talk to CLAUDIA MÜLLER-HOFF, a human rights defender that has worked in Germany for the European Center for Constitutional and Human Rights and in Colombia for the Colectivo de Abogados José Alvear Restrepo about the way attorneys and human rights defenders work in these conditions and what needs to be done to protect them.  CLAUDIA MÜLLER-HOFF is a German lawyer with 20 years of experience in internationally active human rights organizations in Europe and Colombia/Latin America. She has worked on the protection of human rights defenders, on business, climate and human rights, and on theater education and political theatre. She currently lives and works in Colombia.

In the fourth episode of #DefendingTheDefenders we talk about the situation of lawyers in Turkey with Veysel Ok. He is an attorney in Istanbul and the Co-Director of the Media and Law Studies Association, a non-profit which monitors and defends freedom of expression cases against journalists. Veysel has defended high-profile cases such as those against the journalist Deniz Yücel and the novelist Ahmet Altan. Following his work as an attorney in these cases, he has been subject to harassment and prosecution himself. In this episode we will discuss how the Turkish government tries to get rid of independent lawyers altogether – and the brave struggle by attorneys in Turkey who fight for those that are being prosecuted for political reasons even though the consequences may be grave. We will also talk about what the European Union and its member states need to do in their relations with Turkey to support the fight for the rule of law and democracy. 

When the Taliban took over power in Afghanistan in the summer of 2021, it was a disaster for women. Immediately, they were stripped of their rights, in particular their political rights. In the third episode of #DefendingTheDefenders, a podcast by Deutscher Anwaltverein and Verfassungsblog, we talk to Shabnam Salehi about the human rights situation in Afghanistan and the rights of women in particular.  Shabnam describes the years leading up to the Taliban coup as a golden era of women’s rights. At the initiative of human rights activists, the government had taken many steps to promote and protect women and their rights. Even more importantly, women have been educated about their rights. While there were many challenges for human rights activists during these years, Shabnam says, a lot of progress has been made. After the Taliban gripped power, they immediately began to push back on women’s rights, but Shabnam explains what the perspectives of human rights activism in and for Afghanistan are and why she remains hopeful.  In the second segment of this episode, we talk to Matthias Lehnert about the shortcomings of the German and European migration law system. The Afghanistan example shows a slow system designed to prioritise perceived security issues over human rights in some cases, Matthias says. Current regulatory proposals also reveal that the work of attorneys is perceived as a threat to this priority rather than an execution of the right to access to justice. Guests: Shabnam Salehi is a scholar and a prominent women’s rights activist from Afghanistan. She has been an Assistant Professor at Kabul University and a Commissioner and Head of the Women's Rights Promotion and Protection Unit in the Afghanistan Independent Human Rights Commission. Currently, she is a Visiting Researcher at the University of Ottawa. Matthias Lehnert is an attorney-at-law in Berlin. Host:  Lennart Kokott is a Research Assistant at the Chair for Public Law and Comparative Law at Bucerius Law School in Hamburg.  

In the second episode of Defending the Defenders, we talk to Dmitri Laevski about the rule of law and human rights in Belarus. Dmitri is a criminal attorney turned human rights lawyer in the wake of the 2020 presidential elections. He takes us through the recent history of the rule of law in Belarus, from realising that the concept he learned about in university didn't really exist in practice to the organisation of the legal professions in the last decade to the rule of law crackdown in 2020 and ever since. Having himself lost his licence to practice law after defending dissidents, Dmitri offers insights into how it is like to be an attorney in a country where arbitrary detentions and prosecutions have become the norm while less and less attorneys are practicing law because of disbarments or because they are not willing to work under these conditions, leaving Belarus today with well under 1.800 lawyers for a population of 9.5 million people. While there may be not much hope for a return to the rule of law unless there is political change, Dmitri says, there is a number of things that can be done to support those fighting for human rights in Belarus: Bar associations and agencies should not recognise the Belarusian Bar Association as a proper counterpart. Lawyers who have been deprived of their licences in Belarus due to political reasons should be recognised as human rights lawyers internationally, especially in Europe. They could also be supported by being given the ability to work remotely with colleagues in Europe. Finally, it is important to include these lawyers in the European legal community and communicate with them, Dmitri says. Further information on the crisis of the right to defense can be found in a report by the Center for Constitutionalism and Human Rights (available in english soon).

We Need to Talk About the Rule of Law is back for a second season that focuses on the impact of rule of law erosions on attorneys. In the first episode, we talk to Mikołaj Pietrzak. He is an attorney and the Dean of the Warsaw Bar Association, which is the oldest professional legal association in Poland and the administrative association of attorneys in Warsaw. That places him right in the middle of the rule of law crackdown that has been going on in Poland under the ruling PiS party since 2015. In our conversation, he shows us how a such a crackdown looks like in a country of the European Union – including some surprising insights into the immense range of consequences it had throughout the legal profession. Mr Pietrzak's analysis of the dire challenges attorneys face in Poland – exemplified by disciplinary proceedings against them as well as the horrifying situation on the border to Belarus – leads him to a message to European citizens: We need to protect the rule of law every day, through participation in civic society as well as democratic choices in elections.

As our podcast comes to an end, the year and the German presidency of the European Council do too. One of the foremost projects of the German presidency has been to link EU funding and compliance with rule of law standards. The mechanism is going to be a part of the next long-term budget of the Union, starting from 2021 – that is, if Hungary and Poland vote in favor of it, which is increasingly unclear at the moment. The connection of rule of law violations and EU money, the advantages and shortcomings of financial sanctions for member states as well as how things stand on the current proposal – that’s what we will discuss in this week’s episode of We Need to Talk About the Rule of Law that we will wrap up with an outlook on the current state of the Union, rule of law wise. Our fantastic guests for our final episode are: SERGEY LAGODINSKY, a Member of the European Parliament and Vice-Chair of the Parliament’s Committee on Legal Affairs. And KIM LANE SCHEPPELE, the Laurance S. Rockefeller Professor of Sociology and International Affairs in the Princeton School of Public and International Affairs and the University Center for Human Values at Princeton University. This has been We Need to Talk About the Rule of Law, the podcast addressing the Rule of Law crisis in the European Union, brought to you by Verfassungsblog and the German Bar Association (Deutscher Anwaltverein). We Need to Talk About the Rule of Law has been hosted by Maximilian Steinbeis and Lennart Kokott. Thanks to Dorothee Wildt, Niklas Müller and Eva Schriever of the German Bar Association and to Isabella Falkner and Jochen Schlenk of Verfassungsblog.

The European Court of Justice has been in the middle of the European rule of law crisis for the last couple of years – and it has called out rule of law violations especially in Hungary and Poland multiple times. But the Court can’t defend the rule of law in the European Union on its own, and it needs institutional partners in this struggle. For example, it needs someone to file cases and to follow up on its orders. Does the European Commission do enough on their part? Who is the guardian of the Treaties – the Commission, the Court, none of the two? The European Council is able to decide on sanctions against member states using the procedure of Article 7 TEU. But that tool has not been effective so far. Do we witness the juridification of a political conflict that puts too much of a burden on the Court?   This is what LENNART KOKOTT discusses in this week’s episode of We Need to Talk about the Rule of Law with our distinguished guests: KATARINA BARLEY is Vice-President of the European Parliament. She has held several cabinet posts on the federal level in Germany, including a term as Minister of Justice. Before that, she has been an attorney and a judge. DIDIER REYNDERS is European Commissioner for Justice. He has held several cabinet posts on the federal level in Belgium, including a term as Minister of Foreign and European Affairs. LAURENT PECH is Professor of European Law and Head of the Law and Politics Department at Middlesex University London.

Europe is larger than the EU – and a European framework aiming at preserving basic rights and freedoms as well as rule of law safeguards has been in place for 70 years precisely this November: the European Convention on Human Rights. Today, we take a deeper look at the Convention and at the institutions that work to enforce it: The European Court of Human Rights and the Venice Commission of the Council of Europe. Are they capable of adding another layer of human rights and rule of law protection to the European legal framework? What kind of support do those institutions need in order to be able to fulfil their task? And how is their status today, 70 years after the European Convention on Human Rights has been signed? This is what LENNART KOKOTT discusses in this week’s episode of We Need to Talk About the Rule of Law with our fantastic guests: BASAK ÇALI is Professor of International Law at the Hertie School of Governance in Berlin and Co-Director of the School's Centre for Fundamental Rights. ANGELIKA NUSSBERGER is Professor of Constitutional Law, International Law and Comparative Law at the University of Cologne, a Member of the Venice Commission, and has been a Judge at the European Court of Human Rights from 2011 to 2019 and the Court’s Vice President from 2017 to 2019. THOMAS MARKERT has until recently been Director and Secretary of the Council of Europe Venice Commission.