CoE/EU Eastern Partnership Programmatic Co-operation Framework (PCF) Theme II Ensuring Justice

Transcription

1 CoE/EU Eastern Partnership Programmatic Co-operation Framework (PCF) Theme II Ensuring Justice Thematic programme II.1.: Strengthening the independence and efficiency of justice Title of the Action 4 Republic of Moldova: Strengthening the efficiency of justice and support to lawyers profession in the Republic of Moldova 1 Component 2: Support to the Moldovan Bar Association Description Expected results (ER) 1. Increased compliance of national legislations and regulation relating to the mandate and functioning of the Moldovan Bar Association (MBA) with European standards and CoE recommendations. 2. The regulatory framework of the MBA (including ethical and disciplinary rules) is developed in line with European standards. 3. Strengthened capacity of the MBA management and staff to apply management techniques. 4. Increased skills and knowledge of lawyers through the development of curricula for continuous training courses and the use on the Online Teaching Platform. 5. Provisions of the national legislation and regulations related to the selection criteria for membership of the Advocates Licensing Commission and its functioning are in line with European standards. 6. Compliance of national disciplinary proceedings against lawyers with European standards and CoE recommendations largely increased. 1 This description of action is the adjusted and reformulated version of the action initially entitled Strengthening the efficiency, professionalism and accountability of the judiciary in the Republic of Moldova. The title has been amended to reflect more precisely the focus of the action. 1

2 7. Advocates' rights in disciplinary proceedings are strengthened and the rights of third parties, such as clients, are protected. Activities - Meetings of the Project s Steering Committee (as part of the PCF steering). Component 1: Support to the Moldovan Bar Association 2 1. Increased compliance of national legislations and regulation relating to the mandate and functioning of the Moldovan Bar Association (MBA) with European standards and CoE recommendations Provide experts assessment(s) on the mandate and the functions of the MBA for improvement to the MBA functioning in line with European standards and best practices Support consultations and/or a common conference to present findings of the assessment(s)/mainstream findings and recommendations into the current consultations process organised by the MoJ on draft amendments to the Law on Bar, pending a confirmation from MoJ 2. The regulatory framework of the MBA (including ethical and disciplinary rules) is developed in line with European standards Based on , organise a Working Group in the Bar Association for the implementation of recommendations on the regulatory framework of the MBA (including ethical and disciplinary rules) Provide expert support to revisit the Code of Ethics and draft a Commentary to the Code (format and scope to be agreed) Support consultations on revised Code of Ethics and draft Commentary to the Code Expert support to the Bar Association in the uniform implementation of the revised Code of Ethics and its Commentary through workshops and communication support 3. Strengthened capacity of the MBA management and staff to apply management techniques Support the organisation of a Management Modernisation Working Group in the Council of the Bar Association to implement management modernisation Design and deliver two workshops on strategic planning, financial planning and communication for the Bar Association management team: President of the Bar, 2 For further details on the activities, their timeframe and expected results please see the Work Plan of the Component 2 Support to the Moldovan Bar Association. 2

3 members of the Council, heads of Bar s Commissions, Secretary General Support the design and implementation of a Road Map on management development in the following three areas: strategic planning, financial management and planning and communication Organise a Study visit for MBA management and administrative staff to a Member State Bar Association to build cooperation and learn from its experiences, and to have a closer insight into the Bar s structure, mission and working procedures, the process of organisation and functioning of the continuous training programmes and frameworks for lawyers Support building partnerships and twinning arrangements with a Bar Association from a Member State as a follow-up of the study visit organised under 3.4 above Expert support to draft a Bar Association Strategy, its Action Plan and accompanying Communication Strategy Support an internal evaluation of application of management techniques and design further capacity building activities, as needed. 4. Increased skills and knowledge of lawyers through the development of curricula for continuous training courses and the use on the Online Teaching Platform Based on above, expert support on the training needs assessment to define the survey methodology, content and modalities (e.g. on-line/on Line Teaching Platform and/or through local/regional bar structures) to reach all members of the Bar Support the establishment of a Working Group in charge of conducting and evaluating the lawyers training needs Expert support to revise the continuous training curricula to include legal techniques reasoning, writing, research, and advocacy, court procedure, professional ethics and other training needs identified through 4.2 above Expert support to develop/revise and consult a ToT module for lawyers-trainers Support the organisation of the pool of certified Bar Association trainers Online Teaching Platform Support the update of the Online Teaching Platform to include all relevant available materials of human rights standards drafted by CoE, including HELP Programme 3 ; Support a member of the Bar to become a certified HELP trainer 4 to 3 CoE-based platform European Programme on Human Rights Education for Legal Professionals, please see 3

4 increase MBA participation in the HELP Network for the exchange of good practices and experience Organise and conduct five ToT workshops based on revised curricula Support the organisation and conduct of regular advocates training satisfaction surveys to inform any further updates needed in the continuous curricula. 5. Increased skills and knowledge of lawyers through the development of curricula for continuous training courses and the use on the Online Teaching Platform Based on above, coordinate with MoJ and the Bar Association on filling in the gaps, as necessary, to bring applicable national legislation and regulations into compliance with Council of Europe standards Expert support to ensure compliance of legislative and regulatory norms on selection criteria for membership of the Advocates Licensing Commission and it functioning. 6. Compliance of national disciplinary proceedings against lawyers with European standards and CoE recommendations largely increased Based on , support a joint MBA Council of Europe expert assessment of disciplinary proceedings against lawyers based on an agreed methodology which will include efficiency, timeliness and quality criteria Consult on joint assessment findings and propose improvements for implementation, as necessary. 7. Advocates' rights in disciplinary proceedings are strengthened and the rights of third parties, such as clients, are protected On advocates rights see action above On rights of third parties in disciplinary procedures against lawyers: local expert assessment of confidentiality and personal data protection in disciplinary procedures against lawyers Expert support to implementation of recommendations including through creation of a Clients Data Privacy Protection Working Group at MBA and training on data privacy protection. Output indicators 4 The second edition of the HELP training-of-trainers course (ToT) was held in Strasbourg from 16th- 19th February

5 - A set of recommendations towards the reinforcement and clarification of the supervisory functions of the MBA are developed in compliance with European standards and best practices. Up to 80% of them are addressed by the Moldovan lawmakers; - The leadership and staff of the MBA are able to apply modern management techniques at least in the following three areas: strategic planning, financial planning, and communications; - Needs assessment on continuous professional training courses for lawyers relating to legal techniques reasoning, writing, research, and advocacy, court procedure, legal practice and professional ethics is carried out and up to 80% of them are addressed by the MBA; - A viable pool of certified trainers (lawyers) is established with the involvement of up to 70% of trainers of the MBA; - Online Teaching Platform is developed and updated to comprise all relevant available materials on human rights standards drafted by CoE, including HELP Programme; - A set of recommendations for the reinforcement and clarification of the training functions of the MBA are developed in compliance with European standards and best practices. Up to 80% of them are addressed by the Moldovan lawmakers; - Selection criteria and procedure for membership in the Advocates Licensing Commission to ensure the process is open and transparent is developed; - Disciplinary procedures for lawyers and application of these procedures are reviewed to identify their compliance with European standards and best practices. Up to 80% of them are addressed by the Moldovan lawmakers. Outcome indicators 1. European standards and the recommendations of relevant CoE bodies concerning the mandate and functioning of Bar Associations applied to a large extent in Republic of Moldova; 2. At least 50% of training modules are revised in line with the needs of lawyers and are in accordance with CoE and European standards; 3. The pool of MBA local trainers is strengthened as to satisfy the needs of the continuous professional training process of lawyers. 4. Modernised procedure of the selection criteria for membership of the Advocates Licensing Commission capable of ensuring that the process is open and transparent is applied; 5. Improved disciplinary procedures for the lawyers are established. The Commission for Ethics and Discipline functions in an efficient and timely manner. The quality of 5

6 the decisions of the Commission is improved. Impact on final beneficiaries Lawyers will enjoy a freedom to exercise their profession without discrimination, interference or pressure, and will have access to a court and their clients in accordance with fair trial requirements. Baseline 2014 (State of Play) Lawyers will make an important contribution to the protection of human rights and to a fair administration of justice. In a long-lasting perspective, the Activity will ensure the rule of law in the Republic of Moldova. Component 2: Support to the Moldovan Bar Association The main document regulating the Bar Association in the Republic of Moldova is the Law on Advocates adopted on 19 July 2002 (amended), which establishes a professional, self-governing body, the MBA, to which membership is obligatory. Republic of Moldova regulates the activities of advocates and entry into the profession mainly by means of the Law on Advocates and the Advocacy Charter. Advocates in the Republic of Moldova have no monopoly over the provision of legal advice. As for court representation, Article 67 of the Criminal Procedural Code and Article 75 of the Civil Procedure Code establish a full monopoly of advocates over representation in criminal and civil cases. The recent reform of the status and role of advocacy (2010) introduced a number of positive legislative changes to the Law on Advocates through the revision of the role of advocates and organisation of the MBA structure. The legislative amendments the Moldovan lawmakers took into consideration the Recommendation (Rec(2000)21) of the Committee of Ministers to Member States on the freedom of exercise of the profession of lawyer and some of the recommendations set out in the CoE expert opinion on the Law on Advocates. The reform of the institute of the advocacy in the Republic of Moldova had a positive impact on strengthening the role of advocates and improved efficiency of the legal services provided to the population. However, the recent report The Profession of Lawyer of the EU/CoE JP Eastern Partnership Enhancing judicial reform in the Eastern Partnership countries identified a number of shortcomings concerning the functioning of the MBA, entrance to the profession continuous professional trainings, as well as disciplinary liability of lawyers and provided a list of recommendations on how they could be addressed. The report The Profession of Lawyer highlights that the general set up of the MBA status, comply with European standards. However, the Moldovan legislation does not contain a general definition of a bar association the starting point for setting up and building a legal framework on the role and functions of a national bar association. The state authorities are advised to introduce such a definition into its national law. The administrative capacity of the secretariat is limited due to insufficient number of staff. This might have an adverse effect on the efficiency of the Bar. The report The Profession of Lawyer also concludes that the Advocacy Charter should be clearer as to the selection criteria for membership of the Licensing Commission and should not focus purely upon the administrative procedure relating to selection. 6

7 Consideration should be given to the possibility of appealing against the Commission s substantive decisions. Furthermore, the report states that in the Republic of Moldova the Law on Advocates and the Advocacy Charter is overburdened with administrative details. The Charter at times repeats the content of the Law or contradicts it. Consequently, the Moldovan authorities are urged to consider streamlining their regulation and avoiding duplication between the various Laws and the Charter. One of the duties of lawyers in the Republic of Moldova is to engage in continuous professional training. According to Article 54 of the Law, a practicing lawyer should undertake at least 40 hours of training per year. The planning of the training is approved by the Council of the Bar (executive body) and they should be arranged by the MBA. The report The Profession of Lawyer concludes that the Moldovan legislation on continuous professional training meets the European standards, however during consultations with the stakeholders both the MBA administration and the practicing lawyers claimed that the current training curricula is insufficient for the lawyers needs. Moreover, the MBA does not have enough capacity to provide the lawyers with the number of trainings requested. The issue of the disciplinary proceedings remains a difficult one in the Republic of Moldova. According to Article 35. V of the Law on Advocates, the Commission for Ethics and Discipline is responsible for disciplinary issues. The Law envisages that a breach of ethical rules automatically leads to disciplinary proceedings. At the same time the Law does not grant the lawyers under investigation a right to legal representation in disciplinary cases. The CoE report The Profession of Lawyer notes that these provisions should be amended and the lawmakers should ensure that breaches of ethical rules do not automatically lead to disciplinary liability and advocates' rights in disciplinary proceedings should be strengthened and must be more clearly articulated. Relevance with EU Action Plan, EU Association Agreement, EU Association Agenda and EU Visa liberalisation Agenda Implementation period Eastern Partnership Multilateral Platform 1 "Democracy, Good governance and Stability" Core Objectives and Work Programme Objective: Multilateral co-operation in the justice sector with focus on reform of the judiciary, including further work towards independent and efficient judiciary, judicial co-operation. Association Agreement with the Republic of Moldova: to contribute to the political and socioeconomic development of the Republic of Moldova, through wide ranging cooperation in a broad spectrum of areas of common interest, including in the field of good governance, freedom and justice. 2 years 7