Abstract
Venni minacciato da migliaia di haters in coda ad un commento di un politico italiano, parlamentare europeo, che attaccava la funzione difensiva. E Scott Cosby non ha esitato un momento per scegliere di supportarmi, prendendo carta e penna e da presidente in pectore del comitato per i diritti umani della European Bar Assocoation ECBA scrisse al Parlamento europeo affinché intervenisse con il governo italiano a mia tutela. Non lo dimenticherò mai, non Ti dimenticherò mai Scott, arrivederci. I was threatened by thousands of haters because of a comment I made to a statement by an Italian politician, a European parliamentarian, who broadly attacked defence lawyers and the work they do. And Scott Cosby did not hesitate a moment to choose to support me, took pen and paper, and as President of the human rights committee of the European Bar Association ECBA wrote to the European Parliament asking to intervene with the Italian government to protect me. I’ll never forget it, I’ll never forget you Scott, goodbye.
Over 30 years have passed since the adoption of the Basic Principles of the United Nations on the role of the defender, or Basic Principles on the Role of Lawyers, which took place in Havana on 7 September 1990.
The basic principle n. 16 states that ‘Governments shall ensure that lawyers (…) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference’ and that defenders ‘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’. 1
However, intimidations, obstacles, violence and improper interference have not only not diminished but increased – as documented frankly by The Endangered Lawyers Day Foundation and in the annual publications of the ‘Observatoire Mondial des Droits de la Défense et des violations des droits des avocats’, run by the Institut des Droits de l’Homme des Avocats Européens French.
It is estimated that, in the last decade, at least a thousand lawyers have been threatened, killed, injured, disbarred or put under investigation for their professional function; sadly, this happens not only in dictatorships but also in the very heart of Europe.
Furthermore, the legal profession is discredited by individuals (typically on social media), but also by the authorities, despite the fact that Canon 17 of the UN Basic Principles clearly states that ‘where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities’.
Why are legal professionals under attack? In a society founded on respect for justice, the lawyer plays a special role. Its task is not limited to the faithful fulfillment of a mandate under the law. The lawyer must guarantee respect for the rule of law and the interests of those whose rights and freedoms he must defend (.) Respect for the professional function of the lawyer is an essential condition of the rule of law and of a democratic society.
The European Court of Human Rights affirmed that the legal profession has a “central role (…) in the administration of justice and the maintenance of the rule of law. The freedom of lawyers to practice their profession without undue hindrance is an essential component of a democratic society and a necessary prerequisite for the effective enforcement of the provisions of the Convention, in particular the guarantees of fair trial and the right to personal security. Persecution or harassment of members of the legal profession thus strikes at the very heart of the Convention system. For this reason, allegations of such persecution in whatever form, but particularly large scale arrests and detention of lawyers and searching of lawyers’ offices, will be subject to especially strict scrutiny by the Court
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; moreover, EctHR recognized that “independence of the legal profession, (…) is crucial for the effective functioning of the fair administration of justice”.
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It is not only physical threats that we should consider, but the systematic discredit spread through public opinion – even from those authorities which should protect defenders’ role in upholding the rule of law.
In 2018, the Italian Minister of Justice, speaking about the (nth) reform of the Italian criminal procedure, openly suggested that defence lawyers are ‘finaglers’, engaged in securing acquittals for their ‘sly clients’. 5 Such behaviour should not be underestimated, since it undermines the role of defence lawyers and increases their vulnerability.
An example may clarify further:
On Sunday 12 February 1989, with his whole family gathered around the table, a commando murdered the defence lawyer Pat Finucane, also wounding his wife before the terrified eyes of their three children. The fault of the lawyer Pat Finucane was only to effectively defend (among others) those accused of being part of the Irish Republican Army (IRA), and therefore accused of terrorism. The murder was committed only a few weeks after Douglas Hogg MP (at the time parliamentary undersecretary of the British Home Office) had uttered the following words in the English Parliament: I have to state as a fact, but with great regret, that there are in Northern Ireland a number of solicitors who are unduly sympathetic to the cause of the IRA (…) One has to bear that in mind.
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