Basile Ader: “Lawyers are a marker of democracy”
On 5 July 2019, the President of the International Observatory for Lawyers in Danger, Basile Ader, was interviewed on France 24 to discuss the situation of lawyers threatened, assaulted, killed or imprisoned throughout the world.
Question : In the banner that presents your structure, your association, you say that every year hundreds of lawyers are imprisoned, threatened, killed, and you add: “Let us defend the right to defend”. Is the lawyer an endangered species ?
Basile Ader : The lawyer is a marker of democracy. It is a bit like a journalist, in other words, when a dictatorship sets in, most often journalists are arrested so that they do not tell what is going on, and lawyers are arrested so that they stop defending political opponents. And also, because the lawyer is a natural opinion leader, he is called upon to express himself, to criticize when things do not work, when the rules of a fair trial, for example, are no longer respected, it is generally the lawyers who express themselves to denounce it.
And what we are unfortunately seeing in many countries where there is no longer democracy is that lawyers are being muzzled and that is why they are in danger.
Q: Is the defence lawyer in danger ?
Basile Ader : Yes, the one who defends the opponent, the one who defends sensitive cases but not just criminal cases: you have lawyers who are concerned simply because they have brought civil actions against rulers or their families, he is quite often in danger himself.
Q: We are talking about lawyers who are in danger not only because of the causes they may have to defend in court but also because of their own ideas, because of their opinions ?
Basile Ader : I’m talking about the lawyers who do their job as lawyers, those for whom we are worried. It is not forbidden to worry about the fate of lawyers who are themselves involved in politics. But the OIAD intervenes when lawyers are confused with their client’s case. That is the real problem in many countries, when a lawyer defends someone, we consider that the defendant necessarily espouses his ideas, and that he must be treated in the same way. It is this confusion that we observe even in our own country: you have lawyers defending people suspected of terrorism or paedophilia, and they sometimes have a particular fate because of that.
Q: What does public international law say about lawyers’ freedom of speech ?
Basile Ader: There are internal laws, and in particular in our country where the rights of defence are a constitutional right. Because it is considered that without a lawyer there is no fair justice.
Unfortunately, on the international level, we do not have much. We have the Havana Principles, which were drawn up by the UN in August 1990, which set out the principles of independence, freedom of speech for lawyers and the right to professional secrecy. These are not mandatory texts, they are soft law normally respected by all countries in the world because they are laid down by the United Nations.
Q: We have, for example, lawyers in Turkey who are demonstrating: which countries, which states have the lawyer most in danger, in difficulty?
Basile Ader: Unfortunately there are many of them. We mobilize every time. For us Turkey is a dislocation because it is a member of the Council of Europe, it is a country that could have joined one day or another, the European Union, which was very close to our democratic standards in the early 2000s. And unfortunately, over the last ten years, there has been a major deterioration in the conditions of democracy, particularly of lawyers and judges who have resisted. You have 580 lawyers in Turkey today who are imprisoned simply because they are lawyers. I am not talking about those who would have intervened for political reasons. They are imprisoned for false motives. It is because they defend sensitive issues such as Kurdish issues, for example, that they themselves are in some way accomplices, according to the Turkish authorities.
Q: There is Turkey and we could also mention Iran with the emblematic case of lawyer Nasrin Sotoudeh?
Basile Ader: I’ll tell you about it, but they’re not the only ones. There is China, there is Honduras, there is the Philippines, there is Mexico, Colombia, Pakistan, Egypt. There are many African countries. I will obviously tell you about Iran and the appalling situation experienced by this lawyer who has incredible courage, Nasrin Sotoudeh.
Q: She was sentenced to 33 years in prison, 148 lashes for helping, defending women who refused to wear the veil. We’re talking about Nasrin Sotoudeh.
Basile Ader : She has been convicted twice and has simply defended women who refused to wear the veil under conditions that are prohibited there. She defended them; and for that reason, she is judged by a religious court, and in these courts, the lawyers are on a list, which means that they are not lawyers. And she was sentenced to this absolutely unbearable sentence, simply because she was a lawyer. So there is an big mobilization that we have observed.
Q: How can it be explained that States that have signed international conventions decide to free themselves at some point from these principles ? How can this type of “skidding” be explained?
Basile Ader : I think they’re doing it to intimidate everyone. The principle is that you should not resist, especially in courtrooms, and not appeal. In Turkey, what was unbearable for the Turkish authorities was when they referred each time to the European Court. Turkey is by far the country most condemned by the European Court of Human Rights. Well, the criticism we have made of lawyers is that they have dared to bring an appeal to the European Court of Human Rights, which is nevertheless authorised by their texts. We intimidate the lawyers so that no one dares to do it anymore. Being a lawyer there means showing enormous courage. It’s easy for us here to say it because it’s safe.
Q: In these situations, what is the International Observatory for Lawyers in Danger, which you chair, doing?
Basile Ader : It is a bit like the Association “Reporter Sans Frontières” for journalists. It was founded by the National Council of Spanish Lawyers, the National Council of French Lawyers, the National Council of Italian Lawyers and the Paris Bar Association, which is the main organizer. It is because I am vice-president of the Paris Bar that I am president of this organization.
This organization identifies all the lawyers who are in danger today all over the world. He receives daily alerts from the bars, from the families of the lawyers saying: “he has disappeared”, “he has been arrested”, “he has been tried”, “he has been worried”, “he has been killed”, “he is listened to”, “he has a problem for the renewal of his licence”. There are many countries where it is the Minister of Justice who licenses lawyers. For example, in China, every year, Chinese lawyers must renew their licenses. Today, they are even forced to pledge allegiance to the Communist Party if they want to have it.
The OIAD lists these lawyers. There is a website, in all three languages, on which all lawyers who are in danger are posted. They are offered occasional help, sometimes they are exfiltrated: they have been exfiltrated from Honduras, a lawyer who is now a political refugee in Spain and who can continue to practice his profession in Spain. We are trial observers when trials are conducted against them. And then we denounce, we plead at the UN to denounce. We know that every time we publicly denounce or seize the authorities, we do not always get them released, but in general, the fate of these lawyers improves. And above all, they have a message of hope in their prison, which is supported in particular by the action of the IADO.
Q: A final question on States that do not comply with these rules: how to explain, since most of the time sentences are handed down by judges, how to explain that judges participate in this type of crime ?
Basile Ader : I was telling you about the Turkish judges who are also disbarred, sometimes even imprisoned. Here again, it is necessary to show enormous courage not to submit to the will of the authorities. And so these are judges who are not judges; these are judges who are political instruments of the States in question. It should be recalled that in our country, few judges have opposed the Vichy laws. I don’t think it’s that simple for them.
Q: What do you say to the lawyers who are in trouble, who are listening to us today, who are somewhere in these countries of the world? What does the OIAD tell them ? That they have to hold on ?
Basile Ader : That they must hold on, that they must not forget their dress, their oath. Whenever we can, as soon as we know, we can help them, we can bring them lawyers. We can denounce what is happening to them. There is a kind of common DNA of lawyers and every time there is an attack on the defence in any part of the world, whatever the legal systems, it is ultimately all lawyers who are being hit. This mobilization of all lawyers, particularly in the prism of OIAD’s actions, is due to this: when we infringe the rights of the defence, which is a sacred right, which is a constitutional right in our country, we infringe on all lawyers.