Who defends the defenders? On endangered lawyers
| Author | Nicola Canestrini |
| Published date | 01 March 2021 |
| Date | 01 March 2021 |
| DOI | http://doi.org/10.1177/2032284420972809 |
| Subject Matter | Analysis/Opinion |
Article
Who defends the defenders?
On endangered lawyers
Nicola Canestrini
CanestriniLex, Italy
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 affinch´e intervenisse con il governo
italiano a mia tutela. Non lo dimenticher`o mai, non Ti dimenticher`o 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 adminis-
trative, economic or other sanctions for any action taken in accordance with recognized profes-
sional duties, standards and ethics’.
1
However, intimidations, obstacles, violence and improper interference have not only not dimin-
ished but increased – as documented frankly by The Endangered Lawyers Day Foundation and in
the annual publications of the ‘Observatoire Mondial des Droits de la D´efense et des violations des
droits des avocats’, run by the Institut des Droits de l’Homme des Avocats Europ´eens French.
Corresponding author:
Nicola Canestrini, CanestriniLex, Rovereto, Italy.
E-mail: nicola.canestrini@canestrinilex.com
1. UN Basic Principles on the Role of Lawyers
role-of-lawyers/> accessed 14 October 2020.
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Analysis/Opinion
Canestrini 97
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.
So reads the Code of Ethics of European Lawyers of the Council of European Bar Association
(CCBE), at Article 1.1.
2
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 dem-
ocratic 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 particularlylarge scale arrests and
detention of lawyers and searching of lawyers’ offices, will be subject to especially strict scrutiny by the
Court
3
; moreover, EctHR recognized that ‘‘independence of the legal profession,( ...) is crucial for the
effective functioning of the fair administration of justice’’.
4
So can it be assumed that any kind of power is afraid of the function of the lawyer, the
independence of the defender? That economic, military, religious or political power fears its role
as watchdog of the rule of law, not recognizing its function as a bulwark against abuses?
It is not only physical threats that we should consider, b ut the systematic discredit spread
through public opinion – even from those authorities which should protect defende rs’ 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.
2. accessed 14 October 2020.
3. ECtHR, Elci and Others v Turkey, 13 November 2003–24 March 2004
accessed 4 November 2020.
4. ECtHR, Grand Chambre, Morice v France, 2015 ¼ 001-154265> accessed 4 November
2020.
5. Prescrizione, Bonafede: ‘Avanti con la riforma. L’era dei furbi `e finita. Lo Stato deve rendere giustizia ai cittadini’,
Il Fatto Quotidiano (3 November 2018)
con-la-riforma-lera-dei-furbi-e-finita-lo-stato-deve-rendere-giustizia-ai-cittadini/4740505/> accessed 14 October 2020.
2New Journal of European Criminal Law XX(X)
98 New Journal of European Criminal Law 12(1)
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 terror-
ism. The murder was committed only a few weeks after Douglas Hogg MP (at the time parlia-
mentary 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.
6
What our society must now bear in mind is that defence lawyers do not defend crimes or
criminals but (everybody’s) rights. As Rosemary Nelson, another late defence attorney, stated:
‘If you don’t defend human rights defenders, who will then defend human rights?’
6. Protection of Human Rights Advocates in Northern Ireland: Hearing Before the Commission on Security and Coop-
eration in Europe, One Hundred Sixth Congress, Second Session, 14 March 2000, Volume 4, p 21.
Canestrini 3
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