Lawyers are demanding the right to receive clients regardless of the curfew before the State Council

The curfew decree did not include an exception that would allow people to access a lawyer. The profession has decided to challenge this text before the Council of State as part of a summary procedure discussed this Thursday.

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Thursday, February 25 at 3:00 p.m. Lawyers in the State Council demanded the opportunity to receive their clients despite the curfew. A temporary relief against the text preventing them from doing so was initiated by the Montpellier lawyer, then joined by the Conference of Presidents, the National Bar Council (CNB), the French Lawyers Union (SAF), the National Federation of Young Lawyers. connections (FNUJA), as well as about ten bars, including Paris, Seine-Saint-Denis, Toulon and Martinique. The session is one judge, presided over by Fabien Reynaud.

The right to an effective remedy and therefore the right to see your lawyer

The subject of the dispute to be resolved is the following: in the face of the second wave of the epidemic, the Prime Minister first issued a general detention (decree of 29 October 2020), during which it was possible to get to his lawyer by diversion. then at 8 pm (decree of December 14, 2020) and finally at 6 pm (January 15, 2021 No. 2021-031). It is the latter that lawyers object to, because the text does not include an exception that allows the parties to refer to their lawyer. However, their clients most often have work that prevents them from coming during the day. Attorneys, on the other hand, are often in court at authorized times. As a result, only meetings at the end of the day are suitable for everyone. What the curfew does not allow anymore. The profession therefore believes that the text violates the right to effective recourse, which implies the possibility of defense by a lawyer.

If the lawyer of Montpellier is at the head of the complaint, it is because their prefect first interpreted the text as authorizing lawyers to receive their clients before withdrawing. Other departments, including Bouches-du-Rhone, suffered the same fate. Therefore, the first question of the President, Fabien Reynaud, to the government representatives:

– How should we understand the text?

— The government agreed not to use the second imprisonment exception. The curfew applies to non-professional travel to see a lawyer,” replies Jean-Francois de Montgolfier, director of civil affairs and seal at the Chancellery.

But, he explained, lawyers can work outside of this as part of their professional activities, and receive clients or travel to their homes as they require on a professional level. And the representative of the Ministry of Justice recalled that at the General Assembly of the Conference of Presidents, on January 29, the Minister of Justice himself stated that he was not in favor of granting the idea of ​​release to lawyers.

“- How to evaluate professionalism? asks the president. An employee who has a dispute with an employer and wants to consult a lawyer, is he a professional or not? If the answer is no, which seems to me to be the case, the employee who initiated the lawsuit is not in a professional context, but by the same token the business manager is in a professional situation… we get it, but still. A bit strange.

— The concept of professional is cardinal to many legal rules, for example in tax or consumer law, it is often the criterion that leads to the application of a legal rule. That’s why we chose him, explains Jean-Francois de Montgolfier. “In practice, the policeman does not have to check why we are going to visit a lawyer, but whether we are traveling professionally,” he explains.

“Justice is currently two-tiered”

Sophie Mazas of the Montpellier bar protests: “The family of a foreigner placed in a detention center cannot bring them their documents after curfew, but the prefecture will be able to convey their arguments.” The president of Montpellier, Nicolas Bedel de Bouzareinges, goes above and beyond by calling for urgent procedures: “A battered woman is not a professional, a foreigner is not a professional, an employee is not a professional, someone arrested who appears in court the next day is not a professional… This discrimination is on the one hand professionals and on the other hand it is unhealthy among the poor. At the moment, justice is two-tiered.”

Paul Mathonet, attorney representing all parties and stakeholders, says:

“The lawyer’s profession cannot function without a physical interview in the office. How can parties get home with a lawyer between 6am and 4.30pm? As it stands, this is impossible, but if there is no access to lawyers, there is no justice.

“-If we are talking about noting that the exercise of rights is more difficult than we usually agree, Jean-Francois de Montgolfier laments. These measures are mandatory.”

But he notes that the government fixes them almost daily. “Files can come back, it does, the question is whether a 12 hour period a day is a disproportionate impact.”

President Reynaud continues to study the matter. He sees the problem of access to justice and wonders what the consequences of meeting the demands of lawyers will be, but also points to the issue of equality.

“We are doing what we can to avoid new imprisonment, which will have far more serious consequences than what we are talking about here,” explains Jean-Francois de Montgolfier. He then goes on to remind us that the way everyone works has changed over the past year, which is a reality and a limitation (meaning that lawyers have to get used to it too). And suddenly he attacks, “Some of the things we’re talking about don’t cut into the lawyer’s schedule, they take a day to go there.” For him, the schedule does not hinder the litigants, but the lawyers. The agitation and anger on the part of the applicants is palpable. Undeterred, the director continues his argument that medical privacy, the most protected of all but defense privacy, does not prevent “thousands of medical consultations via video conference, it’s less good, but it’s done.” And clarification: “The only legal prohibition of remote intervention by a lawyer is divorce by mutual agreement.”. We have left time at 12 hours a day, and it seems to us that this is not a disproportionate limitation..

“Without justice, society will become ultra-violent”

Sophie Mazas, from the Montpellier bar, speaks again: “A lawyer is a human being, being a lawyer means meeting a person who has problems, solving them, going to the magistrate. “Justice is a peaceful method of settling disputes, without justice the society will become ultra-violent,” he warns.

Lucy Dillenschneider, also from the Montpellier bar, argues: “We don’t see why an individual would have caused the outbreak of the pandemic and not a professional. This discrimination is not justified.”

Gérard Cholakian, who represents the CNB, warns “the function of justice continues unlike the first detention, so we must find a solution to guarantee the right of access to a lawyer.”

Obviously, lawyers feel wronged or abandoned by their supervising ministry and things go badly. I Mathonnet in turn objects. “I am very shocked to hear that lawyers are making so much noise about not so much.” The time period is insufficient for him, because he cannot receive the entire criminal bar during the day, and even more so, it is also incompatible with extraordinary proceedings. However, the government warns that the crisis is likely to continue and worsen. “The situation in the offices is unbearable, we cannot tell the court that they will have to wait a little, the magistrates are not going to wait, they are going to judge, so the measure is serious.” And finally he asserts: “The travel ban only makes sense if we prevent travel, so the administration’s logic is that you don’t need to go to your lawyer.” It is always necessary to visit a lawyer, there is no convenient appointment.”

The debate is coming to an end. At the request of the President, Valentin Raguin, head of the Defense Department of the Ministry of Health, is doing the analysis. Not surprisingly, he notes the government’s desire to limit the flow of population. However, according to his explanation, the further we advance the curfew time, the more efficient we are. It’s either new imprisonment, but high levels of pollution and concerns about options make the situation very tense. At the moment, everyone thinks that the Prime Minister should intervene on this topic at 18 o’clock…

President Reynaud adjourned the hearing at 4:20 p.m. He will issue his order, he says, “early next week.”

The outcome of this dispute cannot be predicted. On the one hand, it is difficult to understand the disparity between professionals and individuals in terms of access to lawyers. More seriously, individuals actually find it difficult to see a lawyer, even though justice is functioning normally, creating a gap to the detriment of defense rights. On the other hand, the threat of an epidemic still looms, especially as few options emerge, and the government is trying to contain it by imposing a restriction that it considers overall much more tolerable than a lockdown and, moreover, a limited time. Therefore, it seems especially difficult to know which way the scales will tip.

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