he CCBE has taken note of recent legislative developments in several European Union states aimed at criminalising assistance to irregular migrants. The CCBE understands that such initiatives aim to prevent organised human trafficking.
However, the CCBE wishes to express its utmost concern regarding the restrictions on human rights and rights of the defence which may arise from such legislative initiatives.
In this context, the LIBE Committee of the European Parliament has just proposed a draft resolution to prevent humanitarian aid from being considered a criminal offence.It is to be recalled that Article 18 of the EU Charter of Fundamental Rights enshrines the right to asylum as a fundamental right in the EU legal order. Furthermore, Article 47 of the EU Charter guarantees the right to an effective remedy and effective access to justice, and Article 48 also guarantees the presumption of innocence and the right of defence as principles of European Union law. Accordingly, restrictions imposed by national law on the activities of lawyers in the field of migration must always comply with these basic rights. Similar to humanitarian aid, activities of lawyers providing legal assistance cannot be criminalised. Access to justice is a fundamental right protected by the European Convention on Human Rights and is considered as one of the main pillars of the rule of law.
The CCBE emphasises that Article 1 bis of the Lisbon Treaty enshrines the rule of law as one of the fundamental values of the Union: ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.’
The CCBE, therefore, recalls that in the European Union, no legislation can be adopted, interpreted or applied in such a way as to limit the possibility for a lawyer to provide legal assistance to any client, regardless of their origin or the way in which they entered the territory of the Union.
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