Parliament relaxes ban on legal advice for Russian companies
Published: Wednesday, Dec 18th 2024, 20:10
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Parliament has relaxed the ban on legal advice for sanctioned Russian oligarchs and companies. After the Council of States, the National Council also adopted a corresponding proposal in an amended form. The amendment would only allow purely advisory activities, but not typical legal activities.
With 110 votes in favor, 71 against and 12 abstentions, the large chamber thus followed its Legal Affairs Committee (RK-N). The latter had recommended the motion submitted by Councillor of States Beat Rieder (center/VS) for approval in advance. Rieder saw the ban on legal advice in the eighth EU sanctions package adopted by Switzerland as a violation of the fundamental right to a fair hearing.
Overall, the Commission shared the Council of States' fears that the current sanctions regime against Russia in the area of legal advice may be disproportionate and could violate certain fundamental rights. The Commission also believes "that lawyers who provide services here are exposing themselves to a certain risk", said rapporteur Simone Gianini (FDP/TI).
Right to counseling for the "worst criminals"
Unlike the Council of States, however, the RK-N distinguished between typical advocacy activities and purely advisory activities. Only the latter should be permitted. "Pre- or extra-procedural services should remain in line with the rule of law," said Philipp Matthias Bregy (center/VS). This is because the right to advice is available even to "bad criminals". Fiduciary advice, for example, would not fall under this exception.
The unclear distinction between legal advice and legal representation is also problematic. It is not logical to prohibit advice that serves to avoid or initiate court proceedings, but to allow it once proceedings have been initiated.
Reference to the European Court of Justice
A red-green minority unsuccessfully requested that the motion be rejected. It emphasized that the ban in question was not directed against natural persons. "Russian citizens can continue to be advised by Swiss lawyers. They are not affected by the ban," said minority spokesperson Tamara Funiciello (SP/BE).
"Relaxing the measures would weaken our credibility and create a dangerous precedent," she warned. The National Councillor also referred to a corresponding ruling by the European Court of Justice (ECJ), which does not assume any violation of fundamental rights.
In the eyes of the European Court of Justice, the ban on providing legal advice to the Russian government and organizations based in Russia is valid. This was stated in a ruling published on October 2 of the current year. According to the ruling, legal representation of natural persons and legal advice in court, administrative or arbitration proceedings are still permitted.
The ban therefore does not interfere with a lawyer's independence. A lawyer's activities may be subject to restrictions in order to protect the rule of law, and these must be justified by objectives serving the common good, the ruling was justified.
Warning of foreign policy consequences
Belgian, French and Dutch lawyers' organizations had taken legal action against the ban on providing legal advice to the Russian government and legal persons, organizations or institutions established in Russia. The EU court dismissed all three complaints.
The ban on legal advice is part of the EU sanctions imposed after the start of the Russian war of aggression against Ukraine. According to the EU Commission, this ban was intended to further increase the pressure on Russia.
Economics Minister Guy Parmelin also unsuccessfully argued against a relaxation of the sanctions regime. In the National Council, he warned of possible foreign policy consequences with regard to Switzerland's credibility. He also feared a further weakening of the sanctions measures. Accepting the motion would be "damaging to Switzerland's reputation", said Parmelin. From a political point of view, a relaxation would not be appropriate due to the ongoing war in Ukraine.
©Keystone/SDA
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