In a criminal trial, an accused has the right to conduct his or her own defence or to designate a counsel of his or her choosing to present a defence on his or her behalf. The right to defend oneself is violated if legislation provides for the obligatory use of counsel. However, a lawyer maybe be imposed in the interests of justice. Counsel should not be prevented from representing an accused person simply because the accused person chooses to be absent from the trial.
The accused person has the right to choose his or her own counsel. Contact between accused and counsel must be unhindered and communications confidential. The right of access to counsel exists from the time of interrogation until appellate procedures, where applicable, have been finalised.
Comprehensive:
In the determination of any criminal charge against him, everyone shall be entitled to defend himself in person or through legal assistance of his own choosing. Article 14(3)(d) of the ICCPR provides: ‘In the determination of any criminal charge against him, everyone shall be entitled … to defend himself in person or through legal assistance of his own choosing …’. Similar provisions can be found in other human rights instruments.[1]
The accused person ought to be present at the hearing as this facilitates the right to defend oneself. The state must take steps to advise the accused about the date and place of the hearing. (See *right to be present during trial*). However, counsel should not be prevented from representing an accused person simply because the accused person chooses to be absent from the trial.[2]
The right to defend oneself is violated if legislation provide for the obligatory use of counsel.[3] However, the right to defend ones self is not absolute. A lawyer maybe be imposed in the interests of justice especially where accused person is ‘substantially and persistently obstructing the proper conduct of trial, or facing a grave charge but being unable to act in their own interests, or where this is necessary to protect vulnerable witnesses from further distress or intimidation if they were to be questioned by the accused’.[4] However, the ICTY has recognised that the relationship between an accused and counsel is based on trust and confidence, and where a complete breakdown of coummunication has occurred between the accused and counsel assigned, such breakdown affect the rights of the accused.
The accused person has the right to choose his or her own counsel.[5] In Estrella v Uruguay, a military court gave the accused person a choice between two officially appointed lawyers. The HRC concluded that article 14(3)(d) has been violated ‘because he was unable to have the assistance of counsel of his own choosing to represent him and to prepare and present his defence’.[6] However, an accused is not guaranteed under article 14(3)(d) of the ICCPR a choice of counsel assigned under legal aid.[7] In some instances, counsel must be provided at no cost to the accused person. (See *legal aid when the interests of justice so require*).
State authorities should refrain from interfering with, influencing, harassing, pressuring or imposing undue restrictions on the manner in which counsel conducts defence 'in accordance with generally recognised professional ethics'.[8] Contact between accused and counsel must be unhindered and communications confidential. In Arutyunyan v Uzbekistan, the HRC found a violation of article 14(3)(d) where state authorities sat in on consultations between accused and counsel, counsel was only allowed access to records a few minutes before hearing and court rejected pleas for adjournment to prepare for defence.[9] (See *adequate time and facilities to prepare defence*). In Engo v Cameroon, the HRC found a violation of the right to defence counsel when state authorities refused the accused person’s counsel from abroad entry into the country to represent him.[10]
The right to access to counsel exists from the time of interrogation until appellate procedures, where applicable, have been finalised.[11] The right to counsel during the preliminary investigation is particularly important in capital cases.[12] The right also exists during sentencing and determination of a non-parole period.[13]
[1] CRC art 40(2)(b)(iii), ACHPR art 7(1)(c), ECHR art 6(3)(c), ACHR, art 8(2)(d); Basic Principles on the Role of Lawyers 1 and 7; Body of Principles 17(1) and 18; European Prison Rules 98(2); ICTY Statute art 21(4)(d); ICTR Statute art 20(4)(d); ICC Statute art 55(2)(c);
[2] Pelladoah v The Netherlands application 16737/90 (ECtHR 1994) para 40.
[3] Hill v Spain communication 526/1993 (HRC 1997) para 14.2; Correia de Matos v Portugal, communication 1123/2002 (HRC 2006) para 7.5.
[9] Arutyunyan v Uzbekistan communication 917/2000 (HRC 2005) para 6.3
[10] Engo v Cameroon communication 1397/2005 (HRC 2009) para 7.8
[11]Gridin v Russia communication 770/97 (HRC 2000) para. 8.5. See also Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, para N(2)(c).
[12] Aliboeva v Tajikistan communication 985/2001 (HRC 2005).
[13] Bailey v Jamaica communication 709/96 (HRC 1999) para 7.5.
In a criminal trial, an accused has the right to conduct his or her own defence or to designate a counsel of his or her choosing to present a defence on his or her behalf. The right to defend oneself is violated if legislation provides for the obligatory use of counsel. However, a lawyer maybe be imposed in the interests of justice. Counsel should not be prevented from representing an accused person simply because the accused person chooses to be absent from the trial.
The accused person has the right to choose his or her own counsel. Contact between accused and counsel must be unhindered and communications confidential. The right of access to counsel exists from the time of interrogation until appellate procedures, where applicable, have been finalised.
Comprehensive:
In the determination of any criminal charge against him, everyone shall be entitled to defend himself in person or through legal assistance of his own choosing. Article 14(3)(d) of the ICCPR provides: ‘In the determination of any criminal charge against him, everyone shall be entitled … to defend himself in person or through legal assistance of his own choosing …’. Similar provisions can be found in other human rights instruments.[1]
The accused person ought to be present at the hearing as this facilitates the right to defend oneself. The state must take steps to advise the accused about the date and place of the hearing. (See *right to be present during trial*). However, counsel should not be prevented from representing an accused person simply because the accused person chooses to be absent from the trial.[2]
The right to defend oneself is violated if legislation provide for the obligatory use of counsel.[3] However, the right to defend ones self is not absolute. A lawyer maybe be imposed in the interests of justice especially where accused person is ‘substantially and persistently obstructing the proper conduct of trial, or facing a grave charge but being unable to act in their own interests, or where this is necessary to protect vulnerable witnesses from further distress or intimidation if they were to be questioned by the accused’.[4] However, the ICTY has recognised that the relationship between an accused and counsel is based on trust and confidence, and where a complete breakdown of coummunication has occurred between the accused and counsel assigned, such breakdown affect the rights of the accused.
The accused person has the right to choose his or her own counsel.[5] In Estrella v Uruguay, a military court gave the accused person a choice between two officially appointed lawyers. The HRC concluded that article 14(3)(d) has been violated ‘because he was unable to have the assistance of counsel of his own choosing to represent him and to prepare and present his defence’.[6] However, an accused is not guaranteed under article 14(3)(d) of the ICCPR a choice of counsel assigned under legal aid.[7] In some instances, counsel must be provided at no cost to the accused person. (See *legal aid when the interests of justice so require*).
State authorities should refrain from interfering with, influencing, harassing, pressuring or imposing undue restrictions on the manner in which counsel conducts defence 'in accordance with generally recognised professional ethics'.[8] Contact between accused and counsel must be unhindered and communications confidential. In Arutyunyan v Uzbekistan, the HRC found a violation of article 14(3)(d) where state authorities sat in on consultations between accused and counsel, counsel was only allowed access to records a few minutes before hearing and court rejected pleas for adjournment to prepare for defence.[9] (See *adequate time and facilities to prepare defence*). In Engo v Cameroon, the HRC found a violation of the right to defence counsel when state authorities refused the accused person’s counsel from abroad entry into the country to represent him.[10]
The right to access to counsel exists from the time of interrogation until appellate procedures, where applicable, have been finalised.[11] The right to counsel during the preliminary investigation is particularly important in capital cases.[12] The right also exists during sentencing and determination of a non-parole period.[13]
[1] CRC art 40(2)(b)(iii), ACHPR art 7(1)(c), ECHR art 6(3)(c), ACHR, art 8(2)(d); Basic Principles on the Role of Lawyers 1 and 7; Body of Principles 17(1) and 18; European Prison Rules 98(2); ICTY Statute art 21(4)(d); ICTR Statute art 20(4)(d); ICC Statute art 55(2)(c);
[2] Pelladoah v The Netherlands application 16737/90 (ECtHR 1994) para 40.
[3] Hill v Spain communication 526/1993 (HRC 1997) para 14.2; Correia de Matos v Portugal, communication 1123/2002 (HRC 2006) para 7.5.
[4] HRC General Comment 32 para 37.
[5] Larrañaga v The Philippines, communication 1421/2005 (HRC 2006) para 7.6.
[6] Estrella v Uruguay, communication 74/1980 (HRC 1990) para 10.
[7] Teesdale v Trinidad and Tobago communication 677/96 (HRC 2002) para 9.6; Pratt and Morgan v Jamaica communication 225/87 (HRC 1989) para 13.2.
[8] HRC General Comment 32 para 34.
[9] Arutyunyan v Uzbekistan communication 917/2000 (HRC 2005) para 6.3
[10] Engo v Cameroon communication 1397/2005 (HRC 2009) para 7.8
[11] Gridin v Russia communication 770/97 (HRC 2000) para. 8.5. See also Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, para N(2)(c).
[12] Aliboeva v Tajikistan communication 985/2001 (HRC 2005).
[13] Bailey v Jamaica communication 709/96 (HRC 1999) para 7.5.