The origin of the right to defense counsel in the criminal procedure system
Introduction
Guaranteeing human rights in general and the legitimate rights and interests of the accused in criminal proceedings in particular has always been considered a key task of the law and of the state’s institutions. In other words, guaranteeing such procedural rights is an important part of the overall guarantee of people’s rights. A society is generally considered a civilized and progressive one when every citizen is legally protected by a fair and democratically-run legislative system. As for persons accused of criminal activity in particular, despite their responsibility for the legal consequences of their violations of the law, their legitimate rights and interests must still be guaranteed. One of the rights of the accused that the state must guarantee is the right to defense counsel.
The constitutions and laws of most nations have indeed
recognized the right to defense counsel as a basic procedural right of the
accused and the state is responsible for guaranteeing its availability. At the
international level, the right to defense counsel has also been recognized in
most international legal instruments on human rights. The details of the
relevant legal instruments all show that the guarantee of the right to defense
counsel is an important aspect of the guarantee of the right to a fair trial.
However, criminal procedure is not necessarily an equal
struggle between the opposing parties. This means that, for fairness to
prevail, all parties in the proceedings - including the prosecution and the
defense - must each be vested with the opportunity to perform their functions.
On this basis, the accused must be supported by defense counsels - who are
qualified in terms of legal knowledge and capable of participating in
proceedings in a manner which is also fair to the prosecution. Guaranteeing the
right to defense counsel involves ensuring that the accused is supported by
defense counsel and guaranteeing the requisite conditions for defense counsel
so that they can protect their client against the allegations of the state.
Currently, the tasks of guaranteeing human rights and
improving the law of criminal procedure have attracted the attention of many
nations. However, one of the difficulties that such nations face in the process
is that of assuring a balance between the various objectives of criminal
procedure; that is the balance between the task of handling crime and
maintaining strict legislation and the guaranteeing and effective protection of
the procedural rights of the accused. In a few nations, the procedural rights
of the accused, including the right to defense counsel, are not fully
guaranteed, and are, indeed, often violated.
According to surveys by a group of researchers, the right
to defense counsel at the pre-trial stage is not always guaranteed even in many
European nations. According to the National Committee on the Right to Counsel,
in the United States, the constitutional right to counsel for defendants who
cannot afford to hire a lawyer despite facing the possibility of imprisonment
is weakened as many states and localities still fail to provide competent
criminal defense counsel. In very many countries, insufficient funding and/or
oversight of public defender systems has led to unacceptable caseloads,
supervision and training, resulting in inadequate representation.
Representation is frequently perfunctory and so deficient
as not to amount to representation at all. In fact, in both Europe and America,
there have been moves towards the continued development and improvement of
legislation in order to provide complete legal mechanisms which will protect
the accused’s right to defense counsel. Basing themselves on the Lisbon Treaty,
European member states have been taken a number of steps to foster and
establish a complete and coherent mechanism guaranteeing the basic procedural
rights of the accused in EU as the whole.
1. Historical
views of the guarantee of the right to defense counsel
At one stage in legal history, there was no formal
definition of the right to defense counsel. However, the right of a person charged
with a criminal offense to have the assistance of counsel is not a new concept.
This right appeared at a very early time and is closely attached to the
judgment at trial. Research has established that trials in which the defendants
were allowed the assistance of counsel can be traced back through several
centuries. Many scholars referred to the Leges Henrici Primi, commonly known as
the laws of King Henry I, as the first written reference to the appearance of
that right in England. This is a collection of early English common and
statutory laws, which is believed to have been composed in the early 12th
century. Translations of the book, originally in Latin, are sometimes
uncertain.
However, as regards the right to counsel, all legal scholars’
works seem to refer to one passage in the book, which Donahue attempted to
translate as follows: “In criminal or capital cases let no man seek consilium;
rather let him forthwith deny [the charge] without having pleaded [and] without
any asking for consilium, of whatever nation or state of life he may be; [then]
let his defender or his lord follow up his affirmative defence or denial by the
appropriate method of proof.”
As analysed by Donahue, the passage reveals that during the
middle medieval time, an accused person him/herself had to plead in a criminal
trial. To plead he/she must not seek help from consilium, who could be friends
or kinsmen who, with knowledge of the facts of the case, could attempt to sway
the opinion of the court to the benefit of the accused. This essentially meant
that the accused person was not entitled to any assistance before and at the
time of the plea. After having pleaded, the accused were entitled to legal
assistance, which could be provided by a man learned in the law, the pleader,
who would be comparable to today’s practicing lawyers.
It is clear from Donahue’s analyses that during medieval
times, the accused person was indeed allowed legal assistance at some stage of
the criminal procedure. This view seems to be shared by many other scholars. It
is quite obvious from scholarly works on the Leges that in its time the accused
person was primarily expected and supposed to stand alone to defend him/herself
as regards the fact of his/her case. The right to defense counsel, if ever
available, was focused on the settlement of the legal aspects of the case
alone. It was, however, recorded in some cases in the 14th century that the
right to defense counsel was not granted to persons accused of felony at all.
Several authors have also shown that the right to defense
counsel began to appear at the time of formation of the adversarial system,
which developed in the later sixteenth and seventeenth centuries. At that time
a series of treason trials in England led to calls for changes in the way the
accused could defend themselves against the Crown.
As noted above, this shows that the initial guarantee of
the right to a defence related to allowing the accused to defend him/herself.
However, practice judgment at that time demonstrated that the defendant’s
self-defence before the court (and representing the King) was very challenging
and could even give rise to an adverse effect, especially in serious criminal
cases. The view that the defendant should be assisted by an attorney during trial
then emerged. During the period from the 15th to the early 17th century, as
evidence becoming prevalent in criminal trials, the right to defense counsel
became allowed for lesser crimes and misdemeanours too. This was indicated
clearly by Bulstrode Whiteloke: “for a trespass or sixpences value, a man may
have a counsellor to plead for him.”
The right to defense counsel seems then to have been a
reaction against the English practice of denying the assistance of an attorney
in serious criminal cases and requiring defendants to appear before the court
and defend themselves in their own words.
Since 1836, full assurance of the right to counsel has been
granted not only in felony but also in misdemeanour trials. The right to be
represented by counsel is a way of extending or improving on the right to
self-defend as self-defence was unsafe and might even be forbidden before the
King. Researchers believe that allowing defence counsel was actually the first
step towards a trial system that would eventually come to be lawyer-dominated
versus the earlier lawyer-free system. This led to the formation of a regime
which guarantees the right to have counsel to defendants in common law
countries which becomes a criterion of an adversarial trial.
Initial manifestations of the right to have counsel are not
only the presence of defense counsel in serious criminal cases but also the
granting of counsel as a favour given by the King to the indigent, the mark of
a charitable policy. Swygert has shown that England has a five-century long
tradition of providing free lawyers for indigent people in both criminal and
civil cases. This tradition originated in 1494, when Parliament passed a law
which stated that the English courts would provide free publicly paid counsel
for poor persons. However, its application in reality was very limited. This is
still considered as the first legal indication of the guarantee of a right to
defense counsel for indigent people, although this guarantee was not recognized
in each separate legal system, even when this right was recognized in most
international conventions on human rights.
That said, a progressive outlook has strongly influenced
the awareness of law-makers in modern times. Many scholars have recognised that
the adversarial system always acknowledges that counsel have played an
important role in providing fairness. Judges in England, and in other countries
using an adversarial system assume that the concept of assistance by counsel
involves two separate matters. The first is whether or not the accused shall
have the right to have the assistance of his friends (his counsel) in making
his defence against the charge for which he has been indicted, provided that
this counsel be supplied at his own expense; and second, whether or not it is
the duty of the state to supply counsel to the defendant, if the defendant
cannot afford to obtain his own. These initial indications of the history of
the guarantee of the right to defense counsel are markers leading to the
current recognition and development of this right in most criminal procedure
systems.
The development of the right to defense counsel in England
rapidly spread to other European countries, even where the inquisitorial system
exists. From the view point of criminal procedure under the English accusatory
system, seventeenth century France affords a convenient starting point. Like the
rest of the Continent, France had adopted the inquisitorial system of criminal
procedure law, a regimen of legal techniques which derived their origin in
part, at least, from Roman law which was rediscovered in the thirteenth
century. However, unlike Common law, initially the right to defence counsel was
not accepted, and this was even clearly stated in the statutes.
For example, Article 162 of the Ordinance of 1539 had
stipulated that: “In criminal matters the parties shall in no wise be heard by
counsel or agency of any third person; but they shall answer by their own word
of mouth for the crimes of which they are accused. Despite such comprehensive
language, the humanity or good sense of the French judiciary had to some extent
construed away the inflexibility of the prohibition, so that a certain discretion
came to adhere to the courts. Some judges still interpreted the article
strictly and refused counsel in all cases even if others had felt free to
permit and even to assign counsel in various types of prosecution.
In the subsequent Ordinance of 1670, the right to counsel
was officially considered. The criminal procedure of France had already become:
"Absolutely secret, not only in the sense that
everything took place beyond the range of the public eye, but in the sense that
no production of documents was made to the accused. The aid of counsel and the
freedom to summon witnesses for the defence had been taken away from him one
after the other".
The conference deliberating on the Ordinance of 1670
proposed to remedy this insecurity. The opinion of Guillaume de Lamoignon,
First President of the Parlement de Paris, was believed to have a critical
effect on the subsequent recognition of the right to have counsel. He assumed
that:
"No evil which could happen in the administration of
justice is comparable to that of causing the death of an innocent person, and
it would be better to acquit a thousand guilty. This counsel… is not a
privilege granted by the Ordinance or by the laws. It is a liberty obtained
from natural law, which is older than all human laws".
Lamoignon’s speech on the right to defense counsel has
reverberated down the centuries, but was unheard and unheeded in the France of
Louis XIV. The Ordinance of 1670, in its final form, still prohibited the
employment of counsel in capital cases. Not until 1808 did the Napoleonic Code
of Criminal Procedure make it compulsory that the defendant should have a
lawyer when tried in the assize court. French law also required that an
attorney represent the accused during the process of pretrial investigation.
Soon after that, the accused in France was granted the right to the assistance
of an advocat (attorney), and if he or she cannot afford one, then one is to be
appointed.
In brief, by comparison with England, countries with an
inquisitorial tradition only allowed the present of counsel in criminal cases
at a later time. However, both adversarial and inquisitorial system eventually
adopted the view that the right to defense counsel is a fundamental human right
of the accused and the State has a responsibility to assist the accused in
implementing his/her legitimate rights.
In conclusion, the right to defense counsel is linked to
the formation of the adversarial system, which requires a fair balance between
the parties engaged in the proceedings. Crucial here is the acknowledgement
that there must be an equal contest of two adversarial forces, between the
accused and the prosecutor. As such, the right to defense counsel is a
procedural right belonging to the accused – who is accused by the State of
committing an offense. Historical studies have indicated that despite certain
drawbacks, the guarantee of the right to defense counsel always attaches to the
State. Where the accused is indigent or is in other difficult circumstances,
he/she will be entitled to enjoy special assistance. All this is now seen as a
basic foundation for any legal system.
The right to defense counsel is currently acknowledged in
Constitutions and laws of most countries. Moreover, this right has been further
standardized in international conventions on human rights and such provisions
are seen as standard in countries which guarantee the right to have counsel.
This guarantee, in the context of international conventions on human rights
means, according to Treschel, the right to have the professional assistance and
services of counsel.
2.
Legal
foundation of the right to defense counsel
Following from the
very nature of
criminal procedure, prosecution
by the State
of the accused
reveals an imbalance
in term of
rights and interests.
As such, the accused must be equipped with certain legal rights if they
are to be able to protect their legitimate rights and interests. This
issue, in the
broad sense, is
not just the
guarantee of the rights and interests of the accused as such but also
the guarantee of the objectiveness and
fairness of the
whole process of
criminal procedure.
The guarantee of the accused’s rights in
general and the guarantee of the right to defence counsel in particular must be
based upon a fair balance between the parties involved in criminal
procedure. Knowledge of the criminal procedure
has indicated that the right to defense counsel has been based on the theory of
due process of law and on the right to a fair trial.
2.1. Due
Process of law
In most legal systems worldwide, we can easily find the
right to or the principle of a “Fair Trial” as a basic legal right of citizens.
Originally, this right emerged late in the world’s history and is connected to
the theory of the Due Process of Law. At the time of its appearance, this
concept of the due process of law is simply understood as a progressive
ideology to protect human rights from the severe provisions of the laws.
However, the current basic contents of the “due process of law” have been
acknowledged and developed not only by scholars but in legislative conceptions
in many countries.
A primary manifestation of the due process of law has been
found in the Law of the Twelve Tables.
This Law has been considered as the earliest statute law of
the Roman Republic, enacted in 455 BC. The founding of this Law was the result
of a fight for fairness of rights initiated by a number of plebeians
complaining of the unfairness of the treatment of the nobility in the Roman
Public. The contents of the Law were specified in 12 Tables, which mainly
covered the guarantee of legitimate rights and interests to all citizens. The
right to have all parties present at a hearing was emphasized in Table 2.1; the
principle of equality among citizens in Table 9.1; and the prohibition of any
acts of bribery of judicial agencies was provided for in Table 9. In terms of
criminal cases, the Law acknowledged the equality of the adverse parties in the
procedural process.
In order to
guarantee the legitimate rights and interests of the accused, Table 1 of the
Law specified: “Where a person is accused of any offense, not only he/she but
also the accusing person must be present at the court trial”. In addition,
Table 9 provided punishments for acts violating legal proceedings and relating
to the persons participating in the judgment of the case. In particular, the
penalty shall be death for a judge or arbiter legally appointed who has been
found guilty of receiving a bribe for giving an acquittal in Table 9.4.
It is likely that the above mentioned Law could be
considered as the first indication of the concept of the due process of law.
Even though the provisions of the Law were not complete or ideal and they have
rarely been mentioned, their ideas have been absorbed and developed in modern
legislation that has outlined progressively broader conceptions of the
guarantee of citizens’ rights under the law in general and the rights of the
accused in particular.
At this time, the right to a defense was not mentioned.
However, the arrival of the concept of the due process of law was the
foundation for subsequent developments in the rights of the accused, among
which is the right to a defense. A similar indication related to the due
process of law has been also found in continental European countries.
The
French Declaration of Human and Civil Rights in 1789 and the Napoleonic Code in
1808 acknowledged that a defendant has enjoys a presumption of innocence and is
required to have a representative to protect him/her before the court. The
spirit of these provisions spread and affected the laws of many other civil law
countries in Europe.
Similarly, in common law systems, the concept of due
process also has its roots in early English law. King John in 1215 conceded in
the Magna Carta as follows:
“No free man shall
be taken or imprisoned or disseised of his Freehold, or Liberties, or free Customs,
or be outlawed, or exiled, or any other wise destroyed, nor will we go upon him
nor send upon him, except by the lawful judgment of his peers or by the law of
the land."
Magna Carta itself
immediately became part of the "law of the land". However, it did no
more than require the monarchy to obey the law of the land. In the year of
1354, in the reign of Edward III, the phrase due process of law first appeared
in a statutory rendition of Magna Carta. These words were used to explain the
protection set forth in Magna Carta, as follows:
"No man of what
state or condition he is, shall be put out of his lands or tenements nor taken,
nor disinherited, nor put to death, without he be brought to answer by due
process of law."
In 1608, the English jurist Edward Coke wrote a treatise in
which he discussed the meaning of Magna Carta. Coke explained the words ‘per
legem terrae’ as meaning ‘Without being brought in to answer but by due process
of the common law.’Beside that, Coke set down a series of common law rights in
his work (four volume Institutes of the Law of England) that protect the
freeman’s life and liberty, among them due process of law. Throughout the many
centuries of English legal history, there have been many laws and treatises
which asserted that various different requirements were part of "due
process" or part of the "law of the land", but usually that was
merely because of what the actual existing law happened to be, rather than
because of any intrinsic requirement.
Following Edward Coke, an American scholar, Herbert Baker,
has further refined the concept of the due process of law by recognizing its
purposes during the proof of crimes. Herbert Packer considered that the
dominant models of criminal justice might be evaluated within the frameworks of
two models: the Crime Control model and the Due Process model.
The Crime Control model is based on the proposition that
the repression of criminal conduct is the essential function of the criminal
process.
On the other hand, the Due Process model is grounded on the
idea of fairness according to which everyone should be placed in the same
position in the criminal process. It is
designed to protect the rights of the accused by presenting formidable
impediments to getting them past each step in the legal process.
Thus, a person may be found guilty only if the facts are
clearly proved according to the law by a competent tribunal. This view of
Packer expresses the view of the Fourteenth Amendment of US Constitution on Due
Process: “no one shall be deprived of life or liberty without due process of
law.”
It can be said that these views mark a major step in
developing the concept of due process. Originally, Due Process results from
following appropriate procedures and its nature is seen as fundamental to the
protection of human rights. The fairness of the legal process has a particular
significant in a criminal case and the influence of the idea of due process in
criminal cases is obvious. It explains the requirement of there being a fair
balance between the parties when resolving the case. This involves protecting
the rights of the accused, including the right to defense counsel.
The aforementioned opinions of the common law have shown
that the due process of law is the origin of the guarantee of the accused’s
rights. This guarantee is also in play in an adversarial trial where the
initiative of the counsel is respected.
The adversarial trial is not just a typical characteristic
of the nation’s following the adversarial model but also an orientation in
those European law systems following the inquisitorial model.
2.2. Principle
of the Right to Fair trial
From the foregoing analyses, we can see that the basic
content of the concept of due process of law is fairness. Fairness is expressed
in two ways: (1) all procedures must be conducted in a fair manner, and (2) the
parties involved in the procedural process must be fairly treated. On the side
of the accused, fairness requires that the competent entities, particularly the
court make their awards responsibly. And the principle of the right to a fair
trial is considered as a tool protecting the rights and interests of each individual
against State arbitrariness and autocracy.
From a historical viewpoint, the right to a fair trial is
connected to the concept of due process of law and can be traced back to Magna
Carta (1215). In its theoretical aspects, the principle of the right to a fair
trial is recognized in different ways.
As a matter of form, Stefan Trechsel has written that the
guarantee of a fair trial is only a procedure, designed to secure ‘procedural
justice’ rather than ‘result-orientated justice’, i.e. a decision or judgment
based on the true facts and the proper application of the law only.
In the same spirit, law-makers in England have always
assumed that the right to a fair trial comprises a number of elements to be
considered under the following headings: independent and impartial tribunal,
fair hearing, public hearing, hearing within a reasonable time and reasoned
judgment. In terms of the contents, the right to a fair trial should be
understood as protecting the search for truth.
In the most general sense, to guarantee the right to a fair
trial in practice, the agencies involved must be obliged to be independent and
impartial. If either of these factors is lacking, there can be no fairness.
Independence means that the court and the judge do not depend on any individual
or organization of the State authorities.
In addition, fairness is deemed to involve the thorough
consideration of the circumstances as well as the provisions of all relevant
laws. Impartiality requires that the judge not be biased in favour of either
party.
Discussing the right to a fair trial, two aspects are
recognized: the first is the principle of equality of arms and the second is
the right to an adversarial proceeding.
The principle of equality of arms implies that each party
must be afforded a reasonable opportunity to present his case – including his
evidence – under conditions that do not place him at a substantial disadvantage
vis-à-vis his opponent. Accordingly, the court just gives its conclusion after
both the prosecution and the defense side are given the opportunity to comment
on the observations filed and evidence adduced by the other party.
This mean that no decision, which is not entirely and
unconditionally in favour of an individual, may be taken unless the person
concerned was previously given an opportunity to state his or her position on
the issue. Of course, the right also implies that the court has an obligation
to take the submissions of the defence into account, which is an obvious
precondition for the effectiveness of an adversarial proceeding. This
observation shows that, as the term ‘equality of arms’ indicates, this
criterion is a comparative one. A comparison of the actual treatment of the
opposing parties must be undertaken in order to ascertain whether an applicant
has been disadvantaged.
The notion of ‘adversarial proceeding’ presupposes equal
adversaries and in a sense is more specific.
In any case, the most fundamental aspect of ‘fairness’ in
proceedings is the right to be heard.
In criminal cases, equality of arms requires the defence to
be on an equal footing with the prosecution. All the written evidence that the
prosecution submits to the court must be communicated to defense counsel so
that it can present its counter-arguments.
The right to a fair trial is one of the human rights best
protected under international law. The Universal Declaration of Human Rights
(UDHR) established some general principles on the right of persons facing
criminal charges. These are contained in three key Articles: Article 9 deal
with protection against arbitrary arrest; Article 10 expresses the right to be
tried in public and in full equality by an independent and impartial tribunal;
Article 11 provides some more detailed provisions, such as the presumption of
innocence and the right of the accused to have ‘all the guarantees necessary
for his defence’.
Compliance with the general principles set out in UDHR, the
right to a fair trial is reflected in the international legal instruments on
human rights. Provisions protecting rights of fair trial can also be found in
Articles 14, 16 of the International Covenant on Civil and Political Rights
(ICCPR); Articles 5, 6 of the European Convention on Human Rights (ECHR);
Articles 3, 8, 9 and 10 of the American Convention on Human Rights (ACHR);
Articles 2, 7 and 26 of the African Charter on Human and People’s Rights
(AfCHPR).
In practice, the concept of the right to a fair trial is
interpreted in more detail and more specifically by the agencies implementing
the Treaties. For instance, according to the United Nations Human Rights
Committee’s interpretation, the right to a fair trial is broader than the sum
of the individual fair trial guarantees and depends on the entire conduct of
the trial.
Similar sentiments have been expressed by the
Inter-American Court of Human Rights. In another sense, the right to a fair
trial is seen as equivalent to the equality of arms. According to the European
Court of Human Rights (ECtHR), “equality of arms, which must be observed throughout
the trial process, mean that both parties are treated in a manner ensuring that
they have a procedurally equal position during the course of the trial, and are
in an equal position to make their case.”
In this case, the
Court found that the right to a fair trial was violated where one side was
denied access to relevant documents in the case file.
On the drafting side, the international instruments on the
protection of individual rights in criminal trial are very similar. Among the
general fair trial protections are:
1. the right to be heard by a competent,
independent and impartial tribunal;
2. the
right to a public hearing;
3. the right to be heard within a reasonable
time;
4. the right to counsel;
5. the right to interpretation.
In criminal proceedings the following also apply in
addition to the general guarantees already mention:
1. the right to be notified of the charge against
one in a timely manner;
2. the
right to adequate time and means for the preparation of one’s defence;
3. the right of an accused to defend him/her self
in person or to be assisted by a counsel of his/ her choosing, and to
communicate freely and privately with his/her counsel;
4. the right to call witnesses;
5. the right not to incriminate oneself;
6. the right to appeal
2.3. Purpose of the right to defense counsel
Why do accused persons need to defense counsel to protect
their rights and interests? And why does the State have the responsibility of
guaranteeing this right of theirs? The historical summary given above has
demonstrated that the formation and development of the right to defense counsel
expresses the demand for the protection of the legitimate rights and interests
of people facing the power of the State.
First, the right to defense counsel is aimed at giving the
accused the opportunity of seeing his or her legitimate rights and interests
protected during the process of the criminal procedure. Counsel acts as an
advisor to the accused, to assist in defending against the accusations of
criminal procedure specialists such as investigators, prosecutors and judges
and all this reflects a subjective requirement of the principle of “equality of
arms”.
In addition, the counsel will be the person giving the
accused the necessary skills, including knowledge of the fundamental rights of
the accused guaranteed in criminal procedure laws (including both national laws
and international conventions).
The aim is to create an attachment between the right to
have counsel and the nature of the procedural progress.The right to defense
counsel will guarantee that the accused can take a more active role in criminal
procedure instead of an inherently negative position.
Commenting on the role of the accused, the assistance of
counsel is the key which opens the door to all the rights and possibilities of
defence in the substantive sense of the term. It is clear that the law –
substantive as well as procedural - is a rather complicated matter, which is
often unintelligible to the layperson.
The second aspect of the right to defense counsel is to
guarantee general humanitarian aims. As before, the accused will have to
confront the accusations of competent agencies during the procedural process. A
series of such decisions involving arrest, detention, interrogation, etc may
lead to unemployment and separation from one’s family and general alienation
from society. These consequences may well result in psychological problems for
the accused. It can be seen that law-makers have also recognized the
possibility of such consequences and the potential unfairness if the accused
are not assisted by the counsel.
3. Guarantee
of the right to defense counsel in international legal documents
The right to defense counsel is recognized and guaranteed
in most international conventions on human rights. In this section, the author
will present aspects of the guarantee by analyzing the provisions of relevant
international conventions on human rights.
International legal documents regarding the right to
defense counsel are all based on the founding principle of the right to a fair
trial. They establish international standards on the right to defense counsel
in Treaties (Conventions) which are then legally binding on their member
countries.
On December 10, 1948 the General Assembly of the United
Nations adopted and proclaimed the UDHR. Article 11(1) of this Declaration
stated:
Everyone charged with a penal offence has the right to be
presumed innocent until proved guilty according to law in a public trial at
which he has had all the guarantees necessary for his defence”.
Even the foregoing statement does not directly mention the
right to defense counsel but subsequent interpretation of Article 11 has shown
that the right to defense counsel is a key element of the right to a fair trial
as mentioned in Article 10 of the Declaration: “Everyone is entitled in full
equality to a fair and public hearing by an independent and impartial tribunal,
in the determination of his rights and obligations and of any criminal charge
against him”.
Based upon the spirit of the Declaration, the right to defense
counsel has been recognized in international legal instruments in two contexts:
(1) the global context (the United Nations itself) and (2) the regional
context.
In the global context, the right to defense counsel is
recognized in Article 14 of the International Covenant on Civil and Political
Rights (ICCPR) as follows:
Everyone charged with an offence shall have the right:
1. to
have adequate time and facilities for the preparation of his defence and to
communicate with counsel of his own choosing;
2. to defend
in person or through legal assistance of his own choosing;
3.If he
does not have legal assistance, legal assistance will be provided to him in any
case where the interests of justice so require, and without payment by him in
any such case if he does not have sufficient means to pay for it.
In addition, the right to defense counsel was also be
guaranteed by the other relevant international instruments, such as the United
Nations Basic Principles on the Role of Lawyers, the Rome Status of the
International Criminal Court etc. Besides, the organizers of the United Nations
play significant role in explaining and guiding the application of provisions
of the ICCPR on the right to defense counsel.
In many regional instruments, covering Europe, America and
Africa, the right to defense counsel is now recognized. Europe can be deemed to
be the leading region in developing regimes protecting human rights.
The relevant instrument in Europe is the European
Convention on Human Rights (ECHR). Similar to the regulations in the ICCPR, the
right to defense counsel is guaranteed in Article 6 of the ECHR. According to
this, the accused shall have the right:
1. to have
adequate time and the facilities for the preparation of his defence;
2. to
defend himself in person or through legal assistance of his own choosing or, if
he has not sufficient means to pay for legal assistance, to be given it free
when the interests of justice so require.
The EU accepts the ECHR as the common basis for the
protection of the rights of suspected or accused persons in criminal
proceedings, and the judgments of the European Court of Human Rights (ECtHR)
are seen as the basis for harmonising the criminal justice systems of the
Member States and for strengthening their mutual trust. The roadmap has also
provided new directions for reaffirming and expanding the procedural rights of
the accused person, including the right to legal counsel. Currently, the Treaty
of Lisbon effective on 1 December 2009 has unified many issues relating to EU
legislation and has suggested a path to joining the European Convention on
Human Rights of the European Union.
If this happened, it would mean that the EU and other
organizations of the EU will be responsible to the ECtHR in respect of matters
governed by the ECHR.
According to European scholars now, the guarantee of the
right to an effective defense must be understood at 3 levels: first, the right
to defense counsel must ensure that the accused shall be supported in a timely
and full manner with all conditions needed to implement his rights being
satisfied; second, the right to defense counsel must be recognized in the
system of statutory documents and must be laid out in practice; third,
improvement of the knowledge and professionalism of defense counsel must be
provided for. All this derives from acknowledging that the right to an
effective defense stems from respecting human rights and placing the accused in
the central position in a criminal case.
In America and Africa, the right to defense counsel has
been recognized in the American Convention on Human Rights and the Convention
on Human Rights and People’s Rights respectively.
In America, the foundational principles of the 1948
American Declaration of the Rights and Duties of Man have been re-confirmed in
the American Convention on Human Rights which was adopted in 1969.
The right to defense counsel is acknowledged in Article 8
of tise Convention. Accordingly, a person who is charged with an offence shall
have the following rights:
1. the
right to have adequate time and means for the preparation of his defence;
2. the
right to defend himself personally or to be assisted by legal counsel of his
own choosing, and to communicate freely and privately with his counsel;
3. the
right of the defence to examine witnesses present in the court and to obtain
the appearance, as witnesses, of experts or other persons who may throw light
on the facts.
This Convention determines the human rights which member
nations have to abide by and to guarantee, and concurrently established the
Inter-American Court of Human Rights.
The Convention is now binding upon 24 out of the 35 member
nations of the Organization of American States (OAS). The United States is not
a member of this Convention even though it signed in 1977.
The foundational instrument on human rights in Africa is
the African Charter on Human and Peoples’ Rights – AfCHPR (hereinafter referred
to as the African Charter) passed by the Organization of African Unity (OAU) on
27 June 1981, effective on 21 October 1981.
The right to defense counsel is acknowledged in Article 7
of the Charter as follows: “Every individual shall have the right to defence,
including the right to be defended by counsel of his choice…” In comparison
with the previous Conventions on human right, the guarantee of the right to
defense counsel in the African Charter has a narrower extent. An African Court
of Human Rights was set up after the Protocol supplementing the African Charter
on Human and People’s Rights (itself passed in 1998) took effect in 2004.
Bibliography:
Guarantee
of the accused person's right to defense counsel. A comparative study of criminal
procedure law. Luong Thi, My Quynh
Felix
Rackow, The right to counsel: English and America Precedent, The William and
Mary Quaterly, Third Series, Vol.11, No.1, (1954).
William
Blackstone, Commentaries on the Laws of England, Vol. 4, 1769
The
History of right to counsel, Journal of Criminal Law, 40 (1976)
John
H. Langbein. The Origins of the Adversary Trial, Oxford, 2003
Harry
R. Dammer, Erika Fairchild. Comparative Criminal Justice Systems
Laurie
Fulton, The right to counsel clause of the sixth amendment, 26 Am. Crim. L. Rev. 1599 (1989)
L. H.
Baker. An Introduce to English Legal History 134, 2d Ed., (1979)
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M. Bradley, Criminal procedure – A worldwide Study, Carolina Academic Press,
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The
formal aspects of an adversarial trial are emphasized in numerous judgments of
the European Court of Human Rights.
Norman Dorsen, Michel Rosenfeld, Andra Sajo, Susanne Baer
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functioning of the European Union (TEU)
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