ECBA Spring Conference 2005, Lisbon, Portugal

Friday 29 - 30 April 2005

Theme: "Taking Liberties - current issues on European criminal law".

A REPORT FROM THE CHAIR OF THE CONFERENCE COMMITTEE, LOUISE HODGES

The ECBA spring conference held in Lisbon on 29 and 30 April 2005 was entitled "Taking Liberties - current issues on European criminal law". It contained a programme covering the latest developments in EU criminal justice and an impressive list of speakers from throughout the European Union and, in particular, from Portugal as our host for the conference and from Spain as their nearest neighbour.

His Excellency, President of the Supreme Court of Justice, Juiz Conselheiro, Dr. José Moura Numes de Cruz opened the conference with an overview of the increasing influence of European law in the area of Justice and Home Affairs, in particular due to common responses to terrorism and organised crime. He congratulated the ECBA for being the organisation representing the interests of justice and promoting rights for the accused and suspect persons in this continuing programme.

Han Jahae, Chairman of the ECBA thanked all the Portuguese delegates for the welcome the Association had received and reminisced about differences in the practices and procedures between the first time he visited Portugal on a mutual assistance case and today. He also provided the delegates with an overview of the work that has been conducted by the ECBA Committee, since our conference in Maastricht.

Julia Bateman from the Law Society of England and Wales Brussels office then provided an overview of current and future priorities in the area of criminal justice under the Hague programme and during the UK presidency. A summary of her presentation can be found on the website (For all contributions received in written please choose from the menu on your left).

The ECBA Legal and Development Committee provided an assessment of the Eurobail proposal. Taru Spronken also gave an update on the Eurowarrant project, and the ECBA priority to set up a network of criminal lawyers. An expert meeting is scheduled for 25 and 26 November 2005 and anyone who would like to participate in the project should contact Taru at This email address is being protected from spambots. You need JavaScript enabled to view it.. Full details of the programme can be found at www.eurowarrant.net.

Two new ECBA projects were launched at the conference, the first a Working Group on Cross-border Financial Crime with the aim to collate and share information and experiences of financial crime cases with a cross-border element between interested defence practitioners. Qualifications to be a member of the working group are simply to be an ECBA member and to have an interest in this topic. Further details of the working group can be found on the website, section PROJECTS or information can be obtained from This email address is being protected from spambots. You need JavaScript enabled to view it..

The second project arose from a workshop at the Maastricht conference which identified a need for information about the availability and use of experts in criminal defence. In some jurisdictions there is a wealth of experts in a number of fields and criminal defence practitioners have valuable experience and knowledge in instructing experts. In other jurisdictions the use of experts by the defence was almost non existent. The ECBA expert witness project aims to collate names of expert witnesses and areas of expertise to be put onto a database accessible to ECBA members. This is not intended to be an ECBA approved expert list, but a facility where practitioners are able to share expert witness details and provide information on that expert. In order to make this project a success we need support from all our members. For those who are interested in either providing information for the database or to assist in the set up the project, please could you contact This email address is being protected from spambots. You need JavaScript enabled to view it..

Once again we were delighted to hear from Caroline Morgan, European Commission - Criminal Justice Unit - DG-Justice and Home Affairs who gave an update on the negotiations on the draft framework decision on certain procedural rights and safeguards. Her concern was that at least one of the Member States may veto the framework decision and there is still a body of opinion that the European Commission does not have the competence to legislate in this area. If the European Constitution Treaty is ratified, the change to qualified majority voting and the clear jurisdiction of the EU to legislate in this area may resolve these difficulties, however the problem is protecting the rights of the accused in the interim period. The European Commission are also soon to issue green papers on the presumption of innocence and on gathering and handling of evidence and issues of admissibility. The ECBA has continued to develop relations with the European Commission and will endeavour to assist and participate in the debate for this crucial area of legislation.

Roberto Pisano, member of the ECBA Advisory Committee, then chaired a panel discussion on "Taking Liberties - anti terrorism laws post 9-11 and Madrid". The panel speakers were Rogelio Alonso (Spain), Ernesto Díaz-Bastien (Spain), James MacGuill (Ireland) and Michael Rosenthal (Germany). Presentations are available on the website.

In the afternoon the second panel discussion was entitled "Money Laundering and the Legal Profession" and discussed and considered recent experiences of the money laundering regime, challenges and the future for criminal practitioners in Europe.
The panel was chaired by ECBA Vice-Chairman Dr. Kai Hart-Hoenig (Germany) with the panel consisting of Jaime Alonso Gallo (Spain), Gareth Rees QC (England),
Dr. Carlos Pinto de Abreu (Portugal) and Wojchiech Hermelinski (Poland). Presentations are available on the website.

National delegate reports were provided by Peter Engels (Belgium), Robin Grey (England and Wales), Olivier Gutkes (France), Dr Kai Hart-Hoenig (Germany), Peter Van der Kruijs (The Netherlands), Patrick O'Reilly (Ireland), Roberto Pisano (Italy), George Gebbie (Scotland), Jaime Alonso Gallo (Spain) and Stefan Kirsch (regarding the international criminal tribunals).

We were honoured to welcome Dr. Rogério Alves, President of the Portuguese Bar Association, to give the conference closing speech. He congratulated the ECBA on its work and emphasised the importance of the work conducted by criminal defence practitioners in assisting individuals who are under threat. He has been working with international organisations in collaboration with colleagues from South America, Spain and the ICC trying to provide better defence practices. It is essential that an individual can choose their lawyer and that lawyer to have a sufficient budget in order to present a good defence. In an era where everyone has become obsessed with security, lawyers should be at the forefront of the campaign to protect the rights of the individual. Following Portugal's revolution 31 years ago, they became a democracy which has involved developing rules to protect defendants and victims, however there is still a long way to go. Media reporting is a big problem in Portugal as the press does not respect the presumption of innocence. It is essential to inform European citizens that criminal codes are not just for criminals but to protect all individuals from the powers of the state, powers that can imprison or restrict us or freeze our assets. Therefore it is essential on all democracies for human rights to be preserved and safeguards to ensure suspects cannot be detained forever awaiting trial. It is essential in a true democracy to fight to protect human rights and to protect our duty as lawyers to properly defend individuals.

In the evening there was a wonderful dinner at the spectacular location of Estufa Real restaurant in the botanical gardens. It was a pleasure to conclude the conference in such beautiful surroundings. However, the overwhelming message from the conference, was that the current climate has produced an environment where it is acceptable for democratic powers to take away liberties from individuals and to take liberties with some of the core legal principles that enshrine the civil liberties and human rights of European citizens. The ECBA will continue to represent the rights of the accused and suspected person in Europe and encourage all members to get involved in the various ECBA projects and to encourage their colleagues to join the association.

Finally, the ECBA is indebted to Rita Albuquerque Bettencourt and her firm, Coelho Ribeiro e Associados, Sociedade Civil de Advogados who spent so much time and effort in organising the Lisbon conference and helped make it such a success.

ECBA Autumn Conference 2004, Maastricht, The Netherlands

8 - 9 October 2004

Theme: "Practical Defence in European Criminal Law" 

A REPORT FROM THE CHAIR OF THE CONFERENCE COMMITTEE, LOUISE HODGES

At the Autumn conference in Maastricht, the European Criminal Bar Association (ECBA) Committee aimed to design a conference that encouraged debate and dialogue amongst the delegates through a combination of workshops, lectures (For all contributions received in written please choose from the menu on your left) and feedback sessions. The conference started on the Friday afternoon with a welcome address by Han Jahae, Chairman of the ECBA and then a brief introduction from the Chairs of each of the workshops as follows: Stephen Gentle dealing with the right to silence; James MacGuill on the topic of expert witnesses and evidence; and Taru Spronken discussing access to legal advice, pre-trial detention and legal privilege. The three workshops ran simultaneously with delegates from a number of jurisdictions represented in each.
On the Saturday afternoon, representatives from each workshop gave a feedback of key issues and observations that arose. Stephen Gentle (England and Wales) confirmed that in all the countries represented, in law there is technically a right to silence, although in England and Wales this has been seriously eroded. Although the right is present in each jurisdiction, how it is exercised and the implications for exercising that right differs. The caution or warning throughout the EU is that you have a right to remain silent, however in England and Wales this caution continues, 'but it may harm your defence if you do not say when questioned anything which you will later rely on in court. Anything you do say will be taken down in evidence.'

Another substantial difference was when the accused received that caution. In Germany, Holland and France it was when the accused became a suspect, in Belgium it was when the client becomes involved in an investigation, and in England it was upon arrest. Although there is a right to remain silent in all jurisdictions (although explicitly eroded in English law) there is an implicit threat in other jurisdictions that exercising the right may have a negative affect in sentencing. Other topics that arose was the attitude to the defendant lying in court, the partial exercise to right to silence, the use of the 'oath' when giving evidence and the difference and frequency of confession evidence in the civil and common law jurisdictions.

George Gebbie (Scotland) reported back on the forensic science and expert evidence workshop and noted that the role of forensic evidence and the expert witness differed due to the different models of criminal justice. In some civil jurisdictions there was an implied judicial criticism of testing such evidence and he highlighted the example of Holland where all the experts worked for the same central laboratory and therefore the challenging expert evidence was generally frowned upon. This compares substantially to the adversarial systems in Scotland, England and Wales and Ireland where expert evidence would be put to the test rigorously. The status of experts also varied although it was a common theme that they all had to satisfy the court they had the credentials to be an expert. There was also discussion of the access to experts and the availability of experts. A common theme was the general lack of good experts for criminal defence work. During the general discussion it became clear that in some jurisdictions there is a movement away from any examination of expert evidence, with written reports deemed sufficient and no oral evidence required. The workshop had concluded one of the ways the ECBA could assist its members was by creating a forum to discuss expert witnesses and evidence so that we can discuss issues that arise, provide recommendations to our colleagues and also warnings of dangers in using a particular expert or field of expertise. The discussion board on the ECBA website can be used for this purpose and we will also be inviting members to join an email group to discuss taking these ideas forward.

Eve Giles (England and Wales) provided feedback on the workshop dealing with access to legal advice, pre-trial detention and legal professional privilege. She noted that in her own experience, having access to knowledgeable and reliable criminal lawyers through the ECBA has been invaluable in her recent cases. For example, a client who had been arrested pursuant to an extradition request from Holland was able to be pre-warned that on his arrival in Amsterdam he would not necessarily have access to a lawyer straight away, his lawyer would not be allowed to attend his interview or interrogation and that interview would not be tape recorded. This was very different from what he would have expected during an investigation in the UK. He knew that he had a right to silence which he was advised to exercise until he was able to speak to his Dutch lawyer (an ECBA member!). Topics discussed in the workshop included the provision of free legal advice on arrest, differences in rules of disclosure, recording of interviews, possibility to consult with a lawyer and the concerns of colleagues from civil jurisdictions that content of an interview could not be challenged if it was tape recorded. For example, in Germany there was a right to advice before interview but no right for a lawyer to be present at the interrogation. In Austria the suspects are not entitled to advice as of right unless the police interview exceeds one hour and when granted access the lawyer is not allowed to speak about the facts of the case during this interrogation. In Italy there is a right to consult with a lawyer, however confession evidence is only admissible if the solicitor is present.

The workshops and the debate that they stimulated were of great interest and assistance to all the delegates and we hope to continue this structure of conferences in the future.
On the Saturday morning, Professor Gerard Mols, Vice-Chair of the University of Maastricht gave a welcome address where he discussed the role of human rights in the EU and asked what are the common European values? He noted a worrying trend, where human rights which were once believed to be certain are now being undermined and he stressed it is defence lawyers who are at the front line to fight against such violations. The fear of terrorism and the strengthening of police powers has been at the expense of human rights.

We were delighted to have in attendance Caroline Morgan of the European Commissions Directorate General Justice and Home Affairs to speak about the draft framework decision on certain procedural rights in criminal cases. Caroline Morgan has been substantially involved in the drafting and discussions on the framework decision and the preceding green paper on procedural safeguards. She gave a succinct and informative overview of the framework decision and some of the issues and discussions that have arisen during its drafting. A detailed paper is provided on this website (click here). Dr. Holger Matt provided a response and set out the ECBA position. He noted that the promise of minimum standards as a pre-condition to new EU legislation that impacts on criminal justice systems has not been met. We are being asked to recognise decisions without these pre-conditions being secured which is a contradiction to the programme of mutual recognition. In the current draft framework decision most essential rights are not mentioned or are invisible. Minimum standards need to be established before any further framework decisions are ratified and must include rules on the exclusion of evidence if minimum standards and rights are not adhered to. Although we welcome the requirement for the provision of legal aid, this is irrelevant unless the amount of remuneration is sufficient to ensure a robust network of defence practitioners. There needs to be a right of examination, testing of evidence and disclosure of exculpatory evidence. Further we need to ensure legal professional privilege is upheld, the accused is at all times treated with dignity, the independence of legal representation is protected and there is a transparent right to bail. Caroline Morgan suggested a way forward for the ECBA to ensure the voice of the defence practitioner is heard is to make an appointment to see the new Commissioner, to become involved in the experts meetings by sending CVs and providing your credentials, to respond fully to the green papers and to lobby the Ministers of Justice in each of the EU countries so that they are aware of the relevance and significance of the safeguards proposed in the framework decision. Since April there has been a lot of negotiation. On the current timetable the next piece of legislation to be given priority is concerning bail. Then there will be draft documents dealing with the presumption of innocence, the gathering of evidence, disclosure (both prosecution and defence), rules of admissibility of evidence and special measures for terrorism. She also noted that the EU Constitution provided a clear basis for the EU to be able to legislate on defendants’ rights and therefore it was necessary for the ECBA to consider our position concerning the proposed constitution.

We were then pleased to welcome back Rob Blekxtoon who had spoken on the European arrest warrant at the Paris conference and was now able to inform the delegates of the joint ECBA/AGIS project on the European arrest warrant. Details are posted on this website (click here) but essentially the aim and scope of the project is to promote the uniform and transparent application of the surrender procedures based on the European arrest warrant in the 25 EU member states. It aims to foster the free exchange of information and the promotion of practical application and academic research. In particular the ECBA is involved in drafting a handbook and website link to provide up to date online and peer reviewed information on national implementation and application. Anyone who is interested in assisting in the project should contact Taru Spronken.
Taru Spronken and Robin Grey QC gave a lively presentation on the imposition of defence counsel in the Milosevic case and the right to a fair trial. The bullet points are available at this site (click here). Following a chronology of the events in the Milosevic case and the principals of the right to defence and a fair trail, Robin and Taru reviewed problematic situations, ethical questions and the responsibility of the defence counsel and introduced a few questions for debate. The key issue was counsel as an aid to a willing defendant or as an organ of the state. Following a comparative assessment of the Dutch and UK practices, problematic situations which may be solved by imposition of defence counsel were considered including obstruction of the court process by the defendant and the mental health or physical ill-health of the defendant. In the Milosevic case the defendant wants to exercise his right to defend himself but there appears to be concerns that the court is being used as a political platform, although we could not find any examples of where Mr Milosevic has manipulated the court process, only his health appears to be a problem. In the English system the fact he was only well enough to be able to run his own defence one day a week would probably be tolerated by the system. Robin identified occasions in the English justice system where the defendant was precluded from self representation, however this was generally only in limited circumstances dealing with the cross-examination of victims in sexual offence cases or child witnesses. Their conclusion was that an apparent representative of the defendant is, in fact, an organ of the state and in those circumstances they questioned whether ethically or professionally defence practitioners should feel compelled to accept such nominations.

David Corker then led a lively debate on the comparative virtues of the inquisitorial and adversarial systems in protecting the rights of the defendant. He discussed the dilemma that occurred in a recent case, where the prosecution had, by accident, disclosed matters which obviously should have been subject to a public interest immunity application for and should not have been disclosed to the defence lawyer. David Corker used this as a basis to discuss what the professional and ethical duties would be in different jurisdictions. For those who want to know how this matter concluded, the judgment from the Court of Appeal can be found at [link to relevant case - to be added].

The conference concluded with short reports from national delegates of recent developments in criminal law in their respective jurisdictions. Papers are available on the website for: Germany by Dr. Kai Hart-Hoenig, England and Wales by Robin Grey and Italy by Paola Balbo. We also heard from Richard Soyer discussing recent developments in Austria where they are facing a complete overhaul of pre-trial procedure. 200 of the 500 regulations are to be completely revised and it is anticipated they will come into force in January 2008, to give sufficient time for such substantial transformation to be adopted. The new rules will set out the relative responsibilities of the police, prosecution and judiciary when exercising justice. However, the rights of the defence are not considered in this overhaul of the law which is why Austria is looking to Europe and is hopeful that the framework decision on safeguards for defendants will provide a basis for such rights. As well as Austria there are many other countries who need the support of the EU to convince their own ministries of justice of the importance of defence rights and due process. We look forward to discussing these matters at the next Autumn conference in Vienna. Richard Soyer also provided a paper which can be located at www.ecba.org. Pascal Vanderveeren discussed the implementation of the European money laundering rules which came into effect in Belgium on 12 January 2004. This has brought with it an obligation for lawyers to disclose information which not only puts the defence lawyer in a difficult professional and ethical position, but affects all other lawyers who are now obliged to disclose if they have any suspicion of a client’s activities. The obligation not to inform this disclosure to the client puts each and every lawyer in an impossible position. The Bar of Brussels and other French speaking Bars have made a request in the arbitration court to look at the problem and consider circumstances where lawyers are obliged to do the opposite of what is their professional and ethical duty to their client. Further, he noted that there are other worrying changes in Belgium criminal law. Evidence is now being accepted that would not have been admissible five years ago. The law is extending powers for the prosecution and investigating magistrates and is increasingly allowing certain techniques of investigation, which would normally be limited to special applications to become generally applicable in criminal cases. Even the Supreme Court are allowing this situation to continue. The message appears to be the priority is protecting security while compromising the rights of the accused. The other trend is for the use of civil law as an additional or alternative sanction in criminal proceedings.

Olivier Gutkes produced the report for France and noted that since 1 October this year, French criminal law has seen a mini revolution. For the first time plea bargaining has been introduced and, although it may be usual in some other systems, it is regarded as totally at odds and alien to French judges and defence lawyers, although a welcome change for the prosecution. Many observers do not believe it is in truth plea 'bargaining' but purely a 'plea of guilty' as it does not appear the defendant will be provided with much of a 'bargain'. The introduction of the new system is designed to decrease the number of hearings in court. At the moment there are too few judges to deal with the volume of cases and Olivier reminded delegates who had attended the Paris conference that the courts had worked late into the evening on the Friday and a full day on the Saturday when we had been at the Palais de Justice, however even with this heavy work schedule the courts were not able to do the work required and it could take 5 to 7 years to get a case to court. The authorities have chosen to solve this problem by having cases heard by public prosecutors in private where the sanction is not more than 5 years, however the general belief is this will extend to all cases in the future. The plea bargaining can either be prompted by the public prosecutor or the accused and it is anticipated the sentence will be lower for a guilty plea. Throughout this procedure the defendant has to be represented by a lawyer. However, if a plea bargain is agreed it still needs to be referred to a judge for approval and, if authorisation is not forthcoming, the defendant will have to go to trial. Negotiating is not part of the culture of the French criminal system and it is anticipated that prosecutors will impose their will rather than negotiate and tell the defendants to either 'take it or leave it'. It was noted that in France an accused can be kept in custody for 48 hours for interrogation without the assistance of a lawyer or access to the file. It is believed the police will encourage the suspects to confess at this stage with the defendant put under pressure to plea bargain before disclosure and without a lawyer present. We look forward to hearing further about these developments at our next conference in Lisbon.

George Gebbie of Scotland then gave a very practical discourse on the European arrest warrant for suspects who are residing in Scotland. He noted that all such matters north of the border are dealt with in Edinburgh. In these circumstances he advised contacting the central authorities or viewing the website, whose details are as follows [available soon website address and telephone]. It is vital in these cases where time is of the essence, that practitioners appreciated the location of their client.

Annelies Röttgering gave a report in relation to Dutch criminal law. She noted that after a number of years with a liberal government, The Netherlands now has had a right wing government in power for the last few years and has a Ministry of Justice with a very instrumental view of criminal law. The law on terrorism has been substantially taken on board. There is a worrying trend of legislation introducing new crimes with very vague descriptions.

The government are planning to introduce acts dealing with terrorism and extending the laws on conspiracy. There are new procedural laws concerning taking accused into custody. There are also new rules of evidence relating to terrorism and the use of intelligence from secret services to be presented as evidence if it is in the national interest and, if necessary, without the presence of the defence. Such examination as allowed will be at a remote location or the evidence may only be available in writing. There are restrictions to calling witnesses and circumstances in which it is the prosecution who judge whether a witness should be called on behalf of the defence. There are fewer checks by authorities on pre-trial detention and less involvement by investigating magistrates regarding the searching of homes, making it a police domain. If a challenge is made to the admissibility of evidence illegally obtained, the Supreme Court have ruled that the defence need to detail precisely what rights have been offended, how their case has been prejudiced and how the judge should deal with it before a request of exclusion will be considered. Finally there is a recent case concerning the retention of records of privileged communications recorded by telephone tapping. The current situation is that such communications should be read to assess whether they are legally privileged and destroyed if this is affirmed. Suggestions that it should at least be an independent person who makes this assessment has not been conceded and it does not appear that the Ministry of Justice will change the current procedure.

Scott Crosby discussed recent developments in EU law in general. He confirmed the third money laundering directive is currently being discussed. The first directive produced in 1991 only related to financial institutions and did not introduce any new crimes. The second introduced in 2001 did start to approximate systems and required member states to apply sanctions concerning money laundering. Following 11 September 2001, the second directive became effective in December 2001 and increased the scope of persons covered, in particular lawyers, giving obligations to inform but preventing disclosure of this fact to their clients under the 'tipping off' provisions. Punishment for breaches of this legislation fell within the scope of national law. Implementation was due to be by 15 June 2003 although not all countries have incorporated the directives into their national law and infringement proceedings have been initiated. Throughout this programme there has been little feedback on how affective the subsequent national legislation has been. Now the third directive is being rushed through as a priority for the Dutch presidency. One of the main justifications for the haste is the fight against terrorism. The provisions include extending customer due diligence, extra-territorial reach and extending those who have reporting obligations. The new directive expressly states that money laundering shall be an offence under EU law and therefore the EU are assuming jurisdiction prior to the constitution being ratified. Finally he noted that in the EU there is a move to make legal persons criminally liable and risk fine, suspension or judicial winding up which is the corporate equivalent of capital punishment.

The conference was concluded with Han Jahae extending his thanks to all the speakers, delegates and individuals who had contributed to the Conference. The ECBA conferences are successful in both their content and value to the criminal practitioner and he looked forward to seeing all the delegates again in Lisbon on 29/30 April 2005 and suggested that each delegate took the responsibility to extend the breadth and depth of the participants attending by inviting one colleague to Lisbon and most importantly to invite colleagues from those jurisdictions who are not generally represented at the conferences.

We also extend our gratitude to the Mayor of Maastricht who invited us to attend the town hall for a reception on the Friday evening and Marie-Anne Sarlet for all her hard work in organising and administering the conference and, in particular, arranging such a wonderful meal at the restaurant at the Mabi Hotel on the Saturday evening.

We look forward to seeing you all in Lisbon in April 2005 and would be grateful if you could complete a conference feedback form which should have been sent to you.  

ECBA Spring Conference 2004, Paris, France

30 April - 1 May 2004

Theme: "The European Arrest Warrant"

A REPORT FROM THE CHAIR OF THE CONFERENCE COMMITTEE, LOUISE HODGES

For all contributions received in written please choose from the menu on your left.

The European Criminal Bar Association (ECBA) Spring Conference 2004 was staged at the magnificent location of the Bibliothèque de l’Ordre des Avocats at the Palais de Justice in Paris. The conference was held on the historic date of 1 May 2004 when 10 accession states joined the European Union. The conference discussed the concerns and potential risks to the rights of the accused within the expanded number of states and the Association’s aim to promote the rights and freedoms of the accused, defendant and convicted person in the new Europe. The ECBA was welcomed by representatives of the Paris Bar Association, Olivier Gutkes and Jean-Yves Leborgne who had organised the fantastic venues for the conference and conference dinner and assisted in the development of the programme. Han Jahae, Chair of the ECBA, thanked the Paris Bar Association for their hospitality. He described the transformation in Europe since his first visit to Paris. Since then, the free movement of capital, goods and people has ensured an end to border controls, passport checks and currency differences for his travels from Amsterdam to Paris. However as a consequence of these changes, laws, rules and regulations are being imposed at a European level and the criminal cases of significance are international. In order to protect the interests and rights of the suspect, defendant or convicted person the ECBA’s mission is to continue promoting discussion among its members and lobbying the relevant authorities on proposed legalisation, practices and procedures.

The first speaker at the conference was Isabelle Jegouzo, Principal Administrator at the European Commission Unit for Judicial Co-Operation in criminal matters. She noted the aim of the European commission was to make Europe a genuine forum where citizens can move in peace. As part of this process the European Arrest Warrant has become a minor revolution in criminal law creating a European judicial space. 10 years ago internal borders came down in Europe and with this there was a need for increased police and judicial co-operation both within the European Union and with its neighbouring countries, for example Iceland and Norway. European criminal legislation is based on a concept of harmonisation and mutual recognition ensuring consistency and homogeny. She recognised that each member state’s criminal justice system enshrines the culture of that nation, however there needs to be confidence and trust in the judicial systems and decisions of each member state in order for mutual recognition to be effective. The European Arrest Warrant has replaced extradition which was perceived as lengthy and cumbersome and not appropriate to the European space without borders. Following the framework decision, each member state has set up its own schedule or chart of when European Arrest Warrants can be accepted or refused. The European Arrest Warrant takes away the need for dual criminality for specified crimes enabling a standard format arrest warrant to be used. The examining magistrate’s role in issuing and executing European Arrest Warrants protects the liberties of the individual and each country has its own checks and balances in its criminal justice system. The key to the European Arrest Warrant is the mutual trust in each system.

We then welcomed Olivier Geron, juge d’instruction who discussed how the European Arrest Warrant has been implemented and operated in France. The procedure involves a judicial decision executed by a judicial authority, however French legislation does not specify how the European Arrest Warrant should be recorded in France. Under the previous system the public prosecutor would be notified. Once a warrant has been received, if bail is granted the Ministry of Justice must be informed to prevent an individual being re-arrested on the same grounds. The system allows both mandatory and discretionary refusal of surrender on specified grounds.

We were then delighted to hear from Judge Blekxtoon, Senior Judge from Holland, who discussed his views on the European Arrest Warrant. This was a particularly significant day as it was Mr Blekxtoon’s 70th birthday and therefore his day of retirement. He is involved in various different projects concerning the European Arrest Warrant, in particular monitoring the implementation and practical difficulties arising out of the European Arrest Warrant. He has particular experience as he has been in office for 18 years at the main court dealing with extradition matters in Holland, a country which has the highest extradition rate in Europe. Mr Blekxtoon noted that significant difficulties arose due to the different translations of the framework decision. There are 15 different language texts which have material differences in the translations. This will inevitably lead to differences in the national legislations. There are also historical difference in the way member states have dealt with extradition for example, in the past Holland has reserved its right to suspend extradition to particular countries and some countries do not accept the jurisdiction of the European court to deal with pre-court decisions. With regard to the 32 criminal offences listed in the European Arrest Warrant the list confusing. Both “swindling” and “fraud” are present in the list which have a particular definition in French law not evident in other jurisdictions. This has a knock on affect with other parts of the European Arrest Warrant, for example, the Framework Decision grants a right for the convicted person to serve a sentence in their home state, however this can cause conflicts with domestic law. To take an example, breach of trust offences in Germany are not offences in Holland. It is against Dutch law to execute a custodial sentence for an offence which is not punishable in Holland and therefore the loss of dual criminality has created a conflict between European and national law. Another example is rape. There was no definition in the European Arrest Warrant. In Holland if someone with a “lascivious intent” French kisses somebody without his or her consent this can constitute rape. This is not true of other European countries and is surely not the type of offence that the European Commission was seeking to cover in the European Arrest Warrant. In conclusion dual criminality cannot be dispelled with easily or lightly. Another particular criticism is the standardised form of the warrant which requires the issuing country merely to tick a box if it is a specified offence. The judicial authority in the executing state cannot go behind that form and assess the offence or verify any significant issues for example statute of limitation for an offence.

The programme then moved onto discuss the European Evidence Warrant. Professor Joachim Vogel noted that the old mechanisms concerning obtaining and transmission of documents were deemed to be slow and inefficient and traditional principles criticised. However in his opinion international co-operation has worked; there is a presumption of innocence and a system of checks and balances to ensure the system was fair. Where decisions from one jurisdiction are imposed into another there is a risk these checks and balances will be upset. The framework decision on European Evidence Warrant currently excludes personal evidence (eg. witness statements) and body samples (eg. DNA). However, if there are pre-existing documents dealing with witness testimony which would not normally be obtainable on an informal request, the European Evidence Warrant could be used to obtain such evidence. There are safeguards in the framework decision that evidence cannot be obtained that would not be discloseable in the issuing jurisdiction. However how can this be challenged? The party affected by the European Evidence Warrant, whether the subject of an investigation or third party, can only seek a legal remedy after the warrant has been executed. The speaker’s opinion was that in some jurisdictions the judiciary will not accept a European Evidence Warrant if it is not compatible with the ECHR. It is clear that the current list of 32 offences will expand and the concept of dual criminality will eventually be abolished. With regard to grounds for non-execution, personal privilege must be recognised in the executing state and again in the speaker’s opinion the judiciary will be reluctant to execute those warrants that give very little information or specificity. There was also a huge gap in legal remedies as the process cannot be started until the data has already been transmitted. There is no legal remedy where there has been co-operation or if the material is already held by a judicial authority. The lawfulness of the warrant can only be adjudicated in the issuing state, and therefore in order to make this system fair the issuing state must be compelled to provide funding for lawyers in both the issuing and executing state and translations of the relevant law and cases.

Paul Garlick QC continued the debate noting that in England and Wales he has a prosecution, defence and judicial role. However for the purposes of the conference he was reviewing the European Evidence Warrant as a defence practitioner and he is sure that the drafters of the framework decision had not contemplated the defence perspective. Mutual recognition depends on absolute trust and therefore there must be absolute openness with transparency and disclosure of information and the same powers for all parties. For any of the European criminal legislation to be effective, minimum safeguards need to be in place rather than merely a statement of intent. Mutual recognition is essential but must be based in reality, transparency and with safeguards. With regard to whether rights are protected, this can only be done in an environment where there is equality between the prosecution and defence. The ability to resolve an issue of innocence or guilt requires consideration of the evidence, and not only the prosecution need powers to gather evidence but there must be a fair balance for the defence. In reality the prosecution are always three or four steps ahead of the defence and usually in the early stages of an investigation the defendant does not even know that applications are being made to acquire evidence. In order to rebut that prosecution evidence the system and powers available to assist the defence to gather evidence must be at least comparable to that of the prosecution. Necessity and proportionality are key words and concepts and the profession needs assurance that these checks and balances can be operated. Even where there has been no coercion there may still be infringements on human rights and, in Mr Garlick’s opinion, there has been no reasonable reason put forward for limitations on the legal remedies, in particular, that the European Evidence Warrant can only be challenged in the issuing state. The concept of mutual trust and recognition is said to be paramount but how can this be compatible with the prevention of examination of the criteria used? People who are going to be subject to a European Evidence Warrant are likely to face extreme linguistic, financial and technical difficulties which will prejudice the rights of the defence and any other party who becomes involved in the procedure. Therefore there need to be two provisions: the right to be assisted by legal counsel and interpreters, and, the provision of legal aid in the issuing state. Without this the safeguards are illusionary. Further there should be an opportunity to challenge the warrant in the executing state both on behalf of the defendant and any third party. Currently the European Evidence Warrant is incompatible with a defence application. We must not lose sight that the ultimate quest is one of justice.

The morning session closed with the Co-Chairs of the ECBA Legal Developments Committee, Holger Matt and Taru Spronken, giving an overview of the ECBA position on minimum standards and procedural safeguards. The ECBA particularly welcomed Caroline Morgan from the European Commission Unit for Judicial Co-operation in criminal matters who has played a significant role in drafting the original Green Paper and on minimum standards and procedural of safeguards and the draft Framework Decision. The aim of the ECBA is for communication and co-operation with the European Commission and it is anticipated that an effective dialogue can take place to ensure that the views of defence practitioners are considered. The defence practitioner has to accept that developments in European criminal law are virtually unstoppable and based on increasing powers and therefore we need to counterbalance this by insisting on procedural safeguards and pre-conditions through lobbying the European Commission as an independent organisation of defence lawyers.

After a wonderful lunch at Maison du Barreau, Holger Matt and Taru Spronken chaired the afternoon session highlighting the first steps in the ECBA project to monitor the European Arrest Warrant and to obtain information about the first experiences of the European Arrest Warrant in various jurisdictions. Most striking was the number of differences between the national legislations giving effect to the framework decision and can be seen in detail in the papers provided by the ECBA Legal Developments Committee to be inserted on the website.

Helen Malcolm spoke about the European Arrest Warrant in England and Wales and noted that only a few have been completed even though the instrument was available since 1 January 2004. The completed case was issued in Sweden pursuant to a child abduction case. The EAW was originally to be contested but eventually the individual consented to the procedure and no rulings of law were made. However it appears from this case that the main practical difficulties are not with the framework decision but with the implementation legislation which is ambiguous. Other problems include a multi-offence warrant which originally seemed to require a warrant for each offence (approximately 60) but now the authorities have accepted one warrant encompassing all the offences, also requests from Ireland include a confirmation from the executing authorities that they have reviewed the papers and confirm that the investigation is likely to result in a conviction and that the individual will not be re-extradited. This is essentially asking for a junior magistrate to sign a declaration that binds the Home Office which they will not do. However, in conclusion the possible arguments against transmission have not been diminished and, in fact, there is now a statutory basis for arguing ECHR points which had not previously existed.

Heiko Albrecht explained the position in Germany where the European Arrest Warrant is not yet implemented although this could be in the next week or so. Similarly Ilias Anagnostopoulos noted the European Arrest Warrant was not yet in force in Greece. The Greek constitution states that Greek nationals cannot be surrendered where the case can fall within the jurisdiction of the Greek courts and, further, the Greek courts have a jurisdiction to try any offence against a Greek national, therefore it is not envisaged that Greek nationals will be subject to an European Arrest Warrant executed in Greece. There are also major problems with the offences not covered by dual criminality there are no legal or technical descriptions provided. He concluded, there is a risk using dialogue dealing with “minimum” standards as those who have in the past achieved best standards are at risk of seeing such safeguards being diminished to a consensus of lower standards. As criminal practitioners we need to ensure that the best standards are achieved and maintained.

Rock Tansey and Xu Lanting reported to the conference on the ECBA China Death Row Project which is a project of training and networking between lawyers of the European community and China. As part of the project there were 10 Chinese lawyers in Paris who were meeting for two days with lawyers from Holland, England and France after the ECBA conference after which they would travel back to each of those jurisdictions to see how the systems worked in practice. Xu Lanting spoke of the Chinese lawyers’ work for freedom and their right to life and the continuing endeavour to strengthen the defence with a hope to reduce the number of cases and number of crimes that attract the death penalty. The delegates gave a standing ovation to Xu Lanting in support of the work that he and his colleagues were doing.

Finally, we were delighted to welcome Nancy Hollander from New Mexico in the United States to discuss treaties between the European Union and the US concerning extradition and mutual assistance. She commented that these were negotiated in secret and there was no publicity in the United States. After extensive legal research which had on the whole been very unsuccessful she eventually found copies of the treaties on an EU website. However, these have not been ratified by the United States and it appeared unlikely to happen for some time. It was also noted that it was not unheard of for the US to unilaterally violate or “unsign“ undertakings given, for example those on the International Criminal Court (ICC). There was reference to joint investigation teams, however the US were loath to resign any sovereignty and there is stiff opposition to any form of mutual legal assistance where the information may end up with the ICC.

Due to a highly successful and lively programme on a beautiful sunny day, the conference had overrun and therefore we were unable to have a discussion from the floor, however in the closing remarks Han Jahae noted one of the next major aims of the ECBA was to develop the website and make the discussion board more friendly and encouraged all members to join the debate on these and many other up and coming European criminal issues.

Can I take this opportunity to thank our French colleagues, Olivier Gutkes and Jean-Yves Leborgne, all the speakers who provided such an interesting and, at times, controversial interpretation and all the delegates, without whom the protection of the suspect, defendant or convicted person in the European Union would be impossible.

ECBA Autumn Conference 2003, Warsaw, Poland

24 and 25 October 2003

Theme: "European Criminal Defence - Obligations and Opportunities"

Programme

• ECBA AUTUMN CONFERENCE 2003
  EUROPEAN CRIMINAL DEFENCE - OBLIGATIONS AND OPPORTUNITIES
  25 OCTOBER 2003
  POLISH ACADEMY OF SCIENCES, UL NOWY SWIAT 72, (ROYAL WAY), 00 330, WARSAW

Venues

• Friday 24 October 2003: Drinks Reception at The Warsaw Bar Council
  19.30 - 21.00 Al Ujazdowskie 49, 00 534 Warsaw
• Saturday 25 October 2003: The Polish Academy for Sciences, Ul Nowy Swiat 72, 00 330 Warsaw

Conference Programme

Morning programme

• 9.00 - 9.45
  Registration and refreshments
• 9.45 - 9.55
  Welcome address - Mr Stanislaw Rymar, President of the Polish BarCouncil
• 9.55 - 10.05
  Opening address by Han Jahae, Chairman, ECBA
• 10.05 - 10.30
  Advocate's Ethics and the Code of Ethics in Poland - Stanislaw Mikke, Chair of the Ethics Commission at the Polish Bar Council
• 10.30 - 10.55
  Money Laundering and the Civilisation of Crime - Ian Smith, Barrister, 11 Stone Buildings, UK
• 10.55 - 11.15
  Coffee / tea
• 11.15 - 11.40
  Monitoring Procedural Protection in the European Union - Sarah de Mas, Fair Trials Abroad
• 11.40 - 12.05
  The Polish Advocate before Community Courts - Tomasz Tadeusz, Koncewicz, Poland
• 12.05 - 12.30
  The Judgements of the European Court of Human Rights in Strasbourg in Polish Cases - Zbigniew Cichon, Poland
• 12.30 - 12.45
  Recent developments in Criminal Law at the European Court of Justice Luxembourg - Dean Spielmann, Luxembourg
• 12.45 - 14.00
  Lunch

Afternoon Programme

• 14.00 - 14.45 Panel discussion - "Funding of Criminal Defence in European Union", chaired by Kai Hart-Hoenig, Germany
  Confirmed panellist:
  Nicola Finnerty, England and Wales
  Jean Yves Leborgne, France
  Kai Hart-Hoenig, Germany (chair)
  Ken Carr, International Criminal Court
  Marcin Radwan-Röhrenschef, Poland
• 14.45 - 15-15
  Coffee / Tea
• 15.15 - 16.30
  National Reports on Key Legal Development in Crime This part of the conference always proves exceptionally interesting.
  A representative from each jurisdiction attending will give a short (5 - 10 minutes) update of key developments in their national criminal law.
• 19.30
  Dinner at Hawelka Restaurant in the Polish Parliament Building (please confirm on your registration form if you wish to attend the dinner and pay with your registration fee - as the dinner is in the Parliament Building we have to pre-book and provide a guest list for security reasons - cost Euro 50)

ECBA Spring Conference 2003, Dublin, Ireland

2 - 3 May 2003

Theme: "The European Commission Green Paper on Procedural Safeguards for the Accused"

ECBA Autumn Conference 2002, Prague, Czech Republic

5 October 2002

Theme: "Major Developments in European Law"

ECBA Spring Conference 2002, Athens, Greece

31 May - 1 June 2002

Theme: "What are the Fundamental Rights of the Accused?"

ECBA Emergency Conference 2001, London United Kingdom

20 October 2001

Emergency Conference after September 11, 2001 to discuss and recommend a Response to the European Council Framework Decisions on:
(i) The European Arrest Warrant and associated Surrender Policies;
(ii) The Proposals for Combating Terrorism.

ECBA Conference 2001, The Hague, The Netherlands

18 - 19 May 2001

Theme: "European Criminal Defence - Obligations and Opportunities"

REPORT OF THE 5TH ANNUAL ECBA CONFERENCE

The Hague, The Netherlands

On 18 and 19 May 2001, a little fewer than seventy criminal lawyers from some twelve countries assembled in the Peace Palace in The Hague for the annual conference of the European Criminal Bar Association. Besides the exchange of national developments that are topical for their practice, important subjects were discussed, such as the threats that the draft amendment to the European directive on money laundering poses for the legal profession. Moreover, attention was paid to the European joint office of national Prosecutors, confiscation of assets and extradition. 

Prof. Mischa Wladimiroff, Vice-president ECBA

Introduction

Since the founding of the association, this is the fifth time that the members of the European Criminal Bar Association (ECBA) have come together in plenary, this time in the Peace Palace in The Hague. In the first years, the ECBA held its meetings in the building of the European Human Rights Committee in Strasbourg. Next in Rome, in the building where in 1950 the European Human Rights Treaty and in 1998 the ICC Treaty were signed and last year in Berlin, in the building of the former Volksgerichtshof, in the hall where, at the time, under the leadership of the notorious judge Freisler, the Nazi show trials were held. This year, the Association has succeeded in having the conference held in the Academy building of the Peace Palace. Criminal lawyers from most of the Western European countries, but also from Eastern Europe, attended the conference.

The ECBA was founded in London in 1996 with a view to creating a European forum for criminal law lawyers, practising in the states within the Council of Europe. Relatively quickly after that, the founding board was extended to become a real European board, composed of lawyers from the United Kingdom, Germany, the Netherlands, Luxemburg, Iceland, Greece, Latvia and Italy. The Association has in view to widen the horizon of criminal lawyers through mutual exchange of knowledge and aims at advancing the mutual consultations about European developments that are of importance to criminal lawyers. The ECBA is preparing to become the counterpart of Eurojust, the European co-ordination bureau of the national judicial bodies. The official language within the Association is English.

The first day

Prior to the conference, those interested were guided through the Peace Palace by its librarian, Arthur Eijffinger, not just in the well-known public places, such as the large session hall and the hall for the permanent representatives, but also in the specific work places, such as the chambers, meeting rooms and the library the highlight of which are the archives of the Nuremberg Tribunal. The conference participants were welcomed at the official start by a prominent representative of the bar of the hosting country Harro Knijff; deacon of the Bar at the Supreme Court of the Netherlands. Knijff put in mind that, 100 years earlier, lawyers from all the civilised countries in the world had also assembled at the same place in The Hague. That meeting, and later Hague conferences,
led to a system of global treaties and the Peace Palace, the place of establishment of the so-called world court, first the Permanent Court of International Justice and, after World War II, the International Court of Justice. The Hague is the cradle of international humanitarian law, which, since the Nuremberg and Tokyo trials, has very much thrived, especially due to the Yugoslav Tribunal that is also taking p/ace in The Hague. The Hague has developed into the legal capital of the world, now that also the Permanent Court of Arbitration has been established here, the (permanent) Hague Conference for Private International Law, the US-Iranian Claim Court, the UN Organisation for the Prohibition of Chemical Weapons and, within a few years, also the International Criminal Court. The chairman, Rock Tansey, Q.C. subsequently opened the conference with an inspired argument about the dangers threatening the present-day criminal legal profession.

Next, under the leadership of Prof. Guy Stessens (lawyer in Antwerp) and Alan Bruce Beverly (European Committee), the conference went into the question whether the proposals to amendment the European Directive on money laundering undermine the professional secrecy and the privilege of non-disclosure of the legal profession. Stessens outlined the history of the guidelines and discussed the proposals. The aim is to oblige lawyers to report indications that clients commit money laundering practices, be that the duty to report will not apply when the lawyer serves the interests of his client in the framework of proceedings or advises in this matter. In all the other cases and particularly for consultation activities, the European Committee wants to create a duty to report. Subsequently, Stessens compared this duty to report with the deontology of the profession. Bruce Beverly discussed the history of the proposals and described the present state of affairs. He especially emphasised the intentions of the committee and tried to add fuel to the fire by pointing out that the core business or the lawyer, trial assistance, stays out of range. Both presentations led to a fierce discussion, in which it became immediately apparent that there was a clear communis opinio among the conference participants about the impossibility of a duty to report because of its incompatibility with proper practice of the profession. It also appeared that the prevailing national legislation shows quite some differences with respect to the permissibility of the involvement of lawyers in financial transactions, including the fees. A lawyer from Greece spoke in favour of a better distinction between the services of a lawyer and those of other professional groups, because the lack of that distinction seems to be the main reason not to exclude lawyers from the duty to report.

The second lecture was given by Bjorn Blomquist, chairman of Eurojust, the co-ordination bureau in Brussels for national justice of the member states of the Council of Europe. This bureau was established only recently and still functions in an embryonic stage. The purpose of the bureau is to improve the implementation of the system of mutual assistance in criminal matters in Europe. It is the intention that, in the end, it will exercise a kind of supervision of the execution (speed and quality) of requests for assistance, but in the first instance it will function as an intermediary between the judicial bodies of the member states. Eurojust may become the judicial complement of Europol, all the member states will delegate a prosecutor to Eurojust. Lawyers from the Benelux and Germany wondered if Eurojust is the gate to a European Prosecution Office in the framework of the plans for a corpus Juris. Blomquist had to remain silent to this question; the matter was politically too sensitive to discuss this subject in public. As a result, this subject runned the risk of ending in a vacuum, if Rock Tansey has not pointed out that the board is making preparations to open a co-ordination bureau in Brussels too. This led to a vivid discussion about how this should be. We will hear of it, as soon as a good location has been found.

The last subject of the first day was the presentation of the national reports of topical developments in various jurisdictions. As usual, these reports yielded a range of subjects of a very diverse nature. I shall mention a few. In Latvia, criminal lawyers still have problems in giving form to the independent practice of their profession and the implementation of the demands human rights treaties make on the national legislation. The presumption of innocence, for example, is hardly taken seriously. In this respect we could reassure the speaker; in Western Europe this is not without problems either. The reporter from France, for instance, pointed out that in France recently legislation came about that intends to reinforce the presumption of innocence in the law of criminal procedure. So far, the emphasis has been too much on obtaining a confession and in this respect the reporter pointed to the abolished rule that the lawyer has only once very short access to his arrested client. The reporter from Greece pointed to the problem that, in his country , the law intends well, but that in practice the police and the judicial authorities often do not take the slightest notice of the rules. The judiciary does not anticipate this sufficiently and only reacts to too conspicuous violations. With regard to England and Wales it was reported that large changes are about to take place, because both the system of legal aid (barristers and solicitors) and the right to a jury trial are under debate. A separate subject is the problematic relationship between the media and criminal cases in Britain. Finally, I mention the discussion in Austria whether the Public Prosecutor should not be more independent of the Minister of Justice. That discussion we also know in the Netherlands, but so far we have been spared the worries of a Minister of Justice who consistently instructs to prosecute alleged insults from fellow party members, such as the notorious Jorg Haider, and those from others not.

The day ended with a dinner and a guest speaker. It was planned for the main prosecutor of the Yugoslav Tribunal, Carla del Ponte, to speak, but, due to an unexpected stay in Belgrade, she was unable to come. In her place, Graham Blewitt, her deputy, gave a very entertaining lecture about the activities of the Tribunal and related also to the role of the lawyers there. For most of the conference participants this was the first time that they received an inside in the new supranational criminal law and Blewitt did therefore not refrain from calling on the participants to get involved in this new part of criminal law. I remark that a number of members of the ECBA already deal with criminal cases before the Yugoslav Tribunal or the Rwanda Tribunal, respectively.

The second day

While on the first day usually issues are dealt with that lead to discussions, the second day is especially meant to give the conference participants an opportunity to go deeper into specialised subjects or to get acquainted with special cases or specific aspects of other legal systems. Han Jahae (the Netherlands), for example, discussed the subject of the European Treaty for the Mutual Recognition of Criminal Judgements. In a very wittily presented contribution, Jahae took us through the system of the treaty and discussed its consequences. Thus he pointed out that this treaty would greatly affect the extradition treaties and the legal aid treaties. An interesting point was his analysis of the difficulties, such as the question to which extent, due to the treaty, the law of evidence of one jurisdiction will infiltrate into other jurisdictions. This subject will certainly be discussed another time, if only because at this moment by far not all the consequences can be foreseen.

The second speaker, Rudie Fortson (UK) lectured about the system of confiscation of assets in England and Wales and the deviating system in Scotland. It was interesting to hear how the two systems display differences with between themselves, which have, among other things, to do with the differences in the two legal systems. Fortson is an expert in his field and, based on statistics, he demonstrated that, despite the differences in the system, the results are nevertheless comparable. For some it was a surprise that in Britain the opinion is held that the instrument of asset stripping is not applied sufficiently yet. That applied especially to those, in whose countries such legislation was only introduced recently. In some jurisdictions, such as Eastern Europe, there are only plans to introduce the enactment of confiscation of the proceeds of crimes. For me, Fortson's lecture had the sound of recognition, for also in our country it is said that not enough is done about stripping criminals of illegal proceeds, although the application in Britain seemed to me more draconian than our system.

The morning was concluded with a lecture about the German extradition practice by Holger Malt and Kai Hart-Hoenig, both from Germany. In their contribution, not only was an explanation given of the rather complicated legislation in this field in the federal system of Germany, but also of how this law is in comparison with other systems, such as of common law countries. The most interesting part was, in my opinion, their discussion of the jurisprudence, based on a large number of cases and, particularly, the relationship to international judicial bodies, such as the Yugoslav Tribunal. The standard casus, the Tadic case, I know only too well. A classical problem is the extradition of a subject of one's own country. The international trend is not to exclude the own subject from extradition, but in Germany that did not go smoothly.

After this rather technical lecture, in the afternoon, we were pleasantly entertained by Clive Nichols Q.C (UK), who at the time was involved in the Pinochet case as lead counsel. In a typically English dry manner Nichols told us very eloquently of proceedings that were following one another as a result of the requests for legal aid. This did not just concern the request of the well-known Spanish examining magistrate Garzon, but also the requests of other states. It was new for me that essentially three, instead of two, cases played in the House of Lords. What Nichols told about the background of the reason for the last decision was particularly interesting: the involvement of one of the Law Lords in Amnesty International and the judicial vicissitudes that were connected with the question if a new consideration could be possible. The Pinochet case is not just of importance to international law, but also other implications of it are of importance. I mention two. A new development in extradition law is that the admissibility can not just be tested (as usual) based on the law at the time of the request, but also on the basis of the law at the time of the conduct. Furthermore, the considerations are of importance on the basis of which the decision was taken that one and the same body -without nova -may decide another time in the same case.

The last subject was a lecture about criminal law of the Russian Federation. Unfortunately, the intended speaker, Victor Vereshetin, judge at the International Court of Justice, was unable to come and give his lecture. Fortunately, the organisation had succeeded in trapping Dr. van der Berg of Leiden University and he discussed the influence of the constitutional law of the Federation on criminal law. This was for most of the participants (except perhaps for the German participants because of the role that the Bundes Verfassungsgericht plays in their system) a surprising line of approach. The criminal law system dates back as long as to the sixties, the Soviet period, and has not been essentially adapted since. The Russians have solved the problems associated with it, not in the least by the ratification of the European Convention on Human Rights, by including in the constitution that the safeguards and rights of the citizens as laid down in the constitution and in treaties, international declarations and customary law, are directly applicable to the lower legislation. This system means that criminal law is de jure supplemented with (international) public law. It reminded me strongly of the situation, which was only ended here in the Netherlands at the end of the previous century, that the modern law of criminal procedure was, as it were, read into our military law of criminal procedure that dates from 1813.

The conference ended with a discussion of free subjects and, after a final word by conference chairman Rock Tansey, we were informed that next year the conference may be held in Greece.

ECBA Conference 2000, Berlin, Germany

28 - 29 April 2000

Theme: "The Role of the Criminal Defence Advocate in times of crisis"