The right to defence (Article 6, paragraph 3(b) and (c) of the ECHR)

Under Article 6, paragraph 3(b) of the ECHR, the accused must be given enough time and must be provided with facilities in order to be able to properly prepare his/her defence, he/she must not be denied the possibility to present arguments of defence before the court, as that would, otherwise, affect the outcome of the proceedings.¹⁴⁰² As to whether the accused has been given enough time to prepare his/her defence will depend on the circumstances of each individual case, the main role being attributed to the complexity of the case and to the defence counsel’s workload.¹⁴⁰³ This shall also apply in the event of subsequent amendments to the indictment. Should that occur during the main trial, the accused would have the right to request for the proceedings to be suspended in order to prepare his/her defence.¹⁴⁰⁴

Restrictions on the defence may be accepted in certain cases, for instance, where the accused has no chance or possibility to challenge the decision on admissibility of a certain piece of evidence, where the accused has no opportunity to give his/her opinion following the reading of the minutes on the hearing of a witness, or where he/she has no opportunity to cross-examine a witness in a contradictory procedure. In these cases, a violation of the right to prepare the defence shall be found, and that is particularly pronounced in cases when the challenged judgment is based precisely on such evidence.¹⁴⁰⁵

While Article 6, paragraph 3(b) of the ECHR exclusively pertains to the preparation of the defence, Article 6, paragraph 3(c) of the ECHR guarantees the general right to use legal assistance and the support of a lawyer-defence counsel throughout the entire proceedings.¹⁴⁰⁶ It is important that the suspect has defence counsel present during police questioning, i.e., during the pre- trial investigation.¹⁴⁰⁷ The defence counsel must have a power of attorney or be authorised by law. If these prerequisites are not in place, the court must not take into account the statements given by the person concerned.¹⁴⁰⁸ Still, the right to defence counsel is not an absolute right and it may be subject to restrictions in exceptional circumstances. Nevertheless, it is permitted when necessary and when it does not negatively affect the defence of the accused. That should be the case if the accused was forced to self-incrimination, or should he be subsequently charged with his previous silence.¹⁴⁰⁹ If the accused has more than one defence counsel, Article 6, paragraph 3(c) of the ECHR shall not be violated if all of them are not present during the proceeding.¹⁴¹⁰

Also, under the ECHR, the request for assistance of required defence counsel is not unrestricted. The legislature ought to determine under which conditions and the time when it is necessary for the required defence counsel to make himself/herself available.¹⁴¹¹ In considering the question when the required defence counsel must be placed at the disposal of the accused, it is necessary to take into account the financial situation of the accused, the complexity of the case, capacity of the accused to defend himself/herself, and the gravity of the punishment anticipated in the respective case.¹⁴¹² The right to an ex officio defence counsel, among other things, presumes that the ex officio defence counsel is qualified enough so as to be able to conduct the defence at a certain stage of the proceeding.¹⁴¹³ Formal assignment of an ex officio defence counsel does not meet this standard, as Article 6, paragraph 3(c) of the ECHR does not mention “assignment”, but the “assistance” of a defence counsel. Although, the State is responsible for regulating this issue, the State, however, cannot be responsible for each and every omission on the part of the ex officio defence counsel. Taking into account the independence of a lawyer, in principle, the defence is a matter that the defence counsel and his/her client (the defendant) must reach an agreement on. This shall apply in particular if it concerns the free choice of a defence counsel. When it comes to an ex officio defence counsel, the state authorities assume certain monitoring obligations, as the accused may not affect the selection of an ex officio defence counsel. If the ex officio defence counsel withdraws from the case or does not fulfil his assignments in terms of “effective defence”, the responsibility of the State is only to warn him/ her to duly perform his/her duties, or to replace him/her if such omissions have become evident, unless the State authorities have indicated otherwise.¹⁴¹⁴ If the law shall provide for an ex officio defence, Article 6, paragraph 3(c) of the ECHR does not guarantee the right of the suspect, i.e., of the accused, to engage a defence counsel of his/her choosing or to select a defence counsel from the court list of the ex officio defence counsels.¹⁴¹⁵

Article 6 of the ECHR explicite does not guarantee the right of the suspect, or of the accused to freely communicate with his/her defence counsel. Such a right, however, arises from within the scope Article 6, paragraph 3 of the ECHR. Yet, the aforementioned does not mean that the right to communication with one’s defence counsel must be guaranteed in absolute terms without any restrictions whatsoever.¹⁴¹⁶ Given the great significance of the right to defence,¹⁴¹⁷ in principle, the suspect must be given a possibility, as early as the initial stage of the pre-trial investigation actions, to consult with his/her defence counsel without hindrance and without the presence of other persons. Why? The defence counsel does not have to prepare himself/herself only for the main hearing,¹⁴¹⁸ but he/she also has to be ready to oversee the initial stages of the proceedings, such as the review of lawfulness of taking certain measures in the pre-trial investigation, preparation of requests for the evidentiary procedure, and especially for the preparation of the defence in relation to the reasons for, length of and conditions in pre-trial detention. Some of these functions pertaining to the assistance of the defence counsel shall be endangered or frustrated if the defence counsel is allowed to communicate with his/her defendant only in the presence of a court officer. Whether a court officer must be physically separated from the defence counsel and his/her defendant shall depend on the circumstances of each individual case. If during the communication between the defence counsel and the defendant, a court officer is in another room, which is separated by a glass partition from the room where the defence counsel and his defendant are, one may not say that the right to free communication has been violated.¹⁴¹⁹ Exceptions to the principle of confidentiality of defence require a special legal reason and justification.¹⁴²⁰ If the defence counsel and the defendant are separated by a thick glass wall for security reasons, with the communication being physically feasible, this may be in compliance with Article 6, paragraph 3(c) of the ECHR.¹⁴²¹ A clear violation of Article 6, paragraph 1 and paragraph 3(b) and 3(c) of the ECHR shall exist if (under the old law) the investigating judge has not allowed the suspect to contact his/her defence counsel prior to the first hearing, and the convicting judgment has relied on a statement given by the accused on that occasion.¹⁴²² The requirements of defence, in terms of the right to a fair trial referred to in Article 6, paragraph 3(b) in conjunction with paragraph 1 of the ECHR, shall not be met in a situation when the accused meets his/her defence counsel for the very first time at the main hearing.¹⁴²³ However, there is no such right enabling the defendant to arrange the possible answers to the questions asked by the court and the prosecution.¹⁴²⁴

The suspect, i.e., the accused has the right to forgo the assistance of a defence counsel. However, the court must be cautious in such a case, especially if there are reasons indicating that the suspect, i.e., the accused, is unaware of the consequences of waiving the right to defence counsel. The court should not decide on behalf of the suspect, i.e., the accused, on waiving the right to the assistance of defence counsel. He/she alone should make a decision as to the respective right.¹⁴²⁵ If the accused was informed of the right to use the assistance of defence counsel, and he/she waived that right, he/she may not complain afterwards that he/she did not have the right to a defence counsel.¹⁴²⁶