CEDH · CASELAW;CLIN;ENG — 4 avril 2018

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Portugal [GC] - 56402/12 Judgment 4.4.2018 [GC] Article 6 Criminal proceedings Article 6-3-c Defence through legal assistance Lawyer not permitted to conduct his own defence in criminal proceedings: no violation Article 6-1 Fair hearing Equality of arms Lawyer not permitted to conduct his own defence in criminal proceedings: no violation Facts – The applicant, a lawyer, was prosecuted for insulting a judge. In the Convention proceedings, the applicant alleged that the decisions of the domestic courts refusing him leave to conduct his own defence in the criminal proceedings against him and requiring that he be represented by a lawyer had violated Article 6 §§   1 and 3   (c) of the Convention. Law – Article 6 §§ 1 and 3   (c) (a)     Preliminary remarks concerning the content and context of the applicant’s complaint – The present case concerned the scope of the right for defendants with legal training to defend themselves in person. However, the applicant had been suspended from the Bar Council’s roll at the time of the impugned proceedings before the domestic courts and could not therefore have acted as counsel in his own case. Furthermore, the applicant had previously lodged an application based on similar complaints, which had given rise to a decision of 15   November 2001 ( Correia de Matos v.   Portugal (dec.), 48188/99 ). In that decision the Court had found that while it was true that, as a general rule, lawyers could act in person before a court, the relevant courts were nonetheless entitled to consider, making use of their margin of appreciation, that the interests of justice required the appointment of a representative to act for a lawyer who had been charged with a criminal offence and who might therefore, for that very reason, not be in a position to assess the interests at stake properly or, accordingly, to conduct his own defence effectively. The Court had therefore rejected the application as being manifestly ill-founded, on the grounds that the applicant’s defence had been conducted appropriately and that his defence rights under Article 6 §§   1 and 3   (c) had not been breached. (b)     Examination of the relevance and sufficiency of the grounds supporting the Portuguese legislation applied in the present case – Bearing in mind the considerable freedom in the choice of means which the Court’s well-established case-law conferred on States to ensure that their judicial systems were in compliance with the requirements of the right in Article   6 §   3   (c), and given that the intrinsic aim of that provision was to contribute to ensuring the fairness of the criminal proceedings as a whole, the standards adopted by those States, and the international developments, were not determinative. The domestic courts had faithfully reflected the reasoning followed by the Portuguese Constitutional Court, Supreme Court and Courts of Appeal for many years. They had stressed that the rules on compulsory legal assistance in criminal proceedings applied by them were designed not to limit the defence’s action but to protect the accused by securing an effective defence; that the accused’s defence in criminal proceedings was in the public interest and that the right to defence by counsel could not therefore be waived; and that the relevant provisions of the Code of Criminal Procedure reflected the premise that an accused was better defended by a legal professional trained in advocacy who was unencumbered by the emotional burden weighing on the defendant and could offer a lucid, dispassionate and effective defence. The decision of the Portuguese courts requiring the applicant to be represented by counsel had been the result of comprehensive legislation seeking to protect accused persons by securing an effective defence in cases where a custodial sentence was possible. Furthermore, a member State might legitimately consider that an accused, at least as a general rule, was better defended if assisted by a defence lawyer who was dispassionate and technically prepared, and that even a defendant trained in advocacy, like the applicant, might be unable, as a result of being personally affected by the charges, to conduct an effective defence in his or her own case. The legitimacy of such considerations applied even more forcefully since, in the instant case, the defendant had been suspended from the Bar, was not therefore a duly registered lawyer and was excluded from providing legal assistance to third persons. Furthermore, the applicant had already been charged with insulting a judge (see the Court’s decision cited above). In view of the special role of lawyers in the administration of justice and, in that context, their duties particularly in regard to their conduct, there had been reasonable grounds to consider that the applicant might have lacked the objective and dispassionate approach considered necessary under Portuguese law to conduct his own defence effectively. Moreover, the particularly restrictive nature of the Portuguese legislation from the perspective of an accused like the applicant did not mean that he had been deprived of all means by which to choose how his defence was conducted and to participate effectively in his own defence. While under Portuguese law on criminal procedure the technical legal defence was reserved for counsel, the relevant legislation conferred on an accused several means by which to participate and intervene in person in the proceedings. The accused had the right to be present at all stages of the proceedings which affected him or her, to make statements or remain silent concerning the substance of the charge and to submit observations, statements and requests, in which he or she could address questions of law and fact and which, without having to be signed by counsel, were added to the case file. Furthermore, he or she could revoke any measure carried out on his or her behalf. Moreover, Portuguese law provided that the accused was the last person who could address the court after oral pleadings had ended and prior to the delivery of the judgment. Lastly, if the accused was not satisfied with court-appointed defence counsel, he or she could request a change of counsel on a valid ground. Accused persons were also free to instruct a lawyer of their own choosing whom they trusted and with whom they could agree on a defence strategy in their case. While accused persons, if convicted, had to bear the costs of mandatory representation, they could request legal aid if they were unable to pay those costs. In that connection, the applicant had been charged the relatively modest sum of EUR 150 for his representation by court-appointed counsel, and that sum had never been paid. Hence, despite the requirement to be assisted by counsel, a relatively broad scope remained in practice for an accused like the applicant to influence how his defence was to be conducted in the criminal proceedings against him and to participate actively in his own defence. The essential aim of the Portuguese rule of mandatory legal representation in criminal proceedings was to ensure the proper administration of justice and a fair trial respecting the right of the accused to equality of arms. Having regard to the procedural context as a whole in which the requirement of mandatory representation had been applied, and bearing in mind the margin of appreciation enjoyed by the member States with regard to the choice of means by which to ensure that an accused’s defence was secured, the reasons provided for the requirement of compulsory assistance overall and in the present case had been both relevant and sufficient. (c)     Overall fairness of the trial – The applicant’s defence had been assured by his court-appointed defence counsel. The applicant, for his part, had not attended the hearings in order to present his own version of the facts or his own interpretation of the relevant legal provisions, and had thus deliberately decided not to participate effectively in his defence together with his counsel. He had not communicated with his counsel and had not attempted to instruct her and determine with her how his defence should be conducted. And while he did not have a relationship of trust with his counsel and suspected her of being inexperienced, he had not challenged the quality of her work or her qualifications before the domestic courts, nor had he alleged that she had made any procedural mistakes. Furthermore, he had not appointed another lawyer of his own choosing with whom he could have agreed on a defence strategy. Moreover, the fact that the applicant had been charged for a second time with insulting a judge could have resulted in a custodial sentence of four months and fifteen days which could not be considered as minor. Given the circumstances and the nature of the offence with which he had been charged, it was not unreasonable for the domestic courts to consider that the applicant lacked the objective and dispassionate approach considered necessary under Portuguese law in order for an accused to conduct his own defence. There were no cogent reasons to doubt that the applicant’s defence by court-appointed counsel had been conducted properly in the circumstances of the case or to consider that the conduct of the proceedings by the domestic courts had been in any way unfair. It appeared from the applicant’s observations and his repeated applications to the Court that his main concern was not the particular criminal proceedings in question but his desire to pursue his principled stance against mandatory legal assistance under Portuguese law. Conclusion : no violation (nine votes to eight). (See also Ibrahim and Others v.   the United Kingdom , 50541/08 et al., 13   September 2016, Information Note   199 )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes