An Individual’s Right to the Effective Assistance of Counsel versus the Independence of Counsel: What Can the Estonian Courts Do in Case of Ineffective Assistance of Counsel in Criminal Proceedings?

• Author: Anneli Soo
• Position: Magister iuris Adviser to the Criminal Chamber, Supreme Court of Estonia
• Pages: 252-263

The reasons for ineffective assistance of counsel are manifold. First, counsel might just be a bad lawyer. Secondly, counsel may in a particular situation be unable to do his or her job properly (e.g., because of illness, consumption of alcohol, or a busy schedule)¹. Thirdly, counsel may have too little time or other resources to prepare adequately for trial, and fourthly, the law or the courts may create a situation in which counsel is unable to perform (e.g., excessively short procedural deadlines)². A fifth reason could be counsel's motivation, which might include everything from how attractive the case is for defence counsel to whether counsel will receive fair remuneration³.

There are two primary forces that can help to reduce ineffective assistance of counsel: the market and judicial supervision. It is clear that no one will hire a lawyer with a bad reputation⁴. But this will not solve the problem entirely. There are regions in Estonia where choice of counsel is limited and clients have to settle with the few local lawyers available⁵. Also highly problematic is the issue of appointed counsel, referring to where a person has no right to select counsel of his or her choice. As of 1 January of this year, counsel is appointed at the request of an investigative body, the Prosecutor's Office, or the court by the Estonian Bar Association, which means that the courts have no say in the choice of counsel⁶. While on the one hand this ensures that the body conducting the proceedings (I dare to say above all an investigating body or the Prosecutor's Office) cannot appoint an advocate who will make its job easy, it also leaves no possibility for the courts to exclude advocates who are known to provide ineffective assistance.

The European Court of Human Rights (hereinafter 'ECtHR') has on numerous occasions emphasised the principle of the independence of counsel in criminal proceedings and has held that all measures taken by the national courts calculated to permit the officially appointed lawyer to fulfil his or her obligations must be taken whilst respecting the basic principle of the independence of counsel⁷. The Code of Criminal Procedure ⁸ (hereinafter 'CCP') does not provide for the independence of counsel. Yet it is clear that defence counsel acts in the interests of the client in criminal proceedings and that it is not up to the opposing side or to the court to dictate how counsel should fulfil his or her obligations⁹. To a certain degree, the independence of counsel is defined in the Code of Criminal Procedure through the obligations of counsel. Subsection 47 (2) of the CCP provides that counsel is required to use all means and methods of defence that are not prohibited by law in order to ascertain the facts that vindicate the person being defended, prove his or her innocence, or mitigate his or her punishment. This allows us to conclude that counsel is bound by law and only by the law in the fulfilment of his or her duties. Insofar as the majority of counsel involved in criminal proceedings are advocates ¹⁰ , it makes sense to look for the definition of independence in the Bar Association Act¹¹. Pursuant to subsection 43 (1) of the Bar Association Act, advocates are independent in the provision of legal services and shall act pursuant to the law, legal acts and resolutions adopted by the bodies of the Bar Association, the requirements for the professional ethics of advocates, good morals, and their conscience.

While counsel may be independent in their activities, a certain level of control over their performance must nevertheless be possible, to ensure that the right of the accused to the assistance of counsel does not become an empty right. Next to competition, judicial supervision is one of the most important mechanisms for reducing ineffective assistance of counsel. The court directs the proceedings and gains a direct overview of counsel's performance, and therefore can react rapidly in cases of ineffective assistance. The supervision of the court over counsel's activities can be divided into two categories, direct and indirect, with the former subdivided into ongoing and ex post supervision. By ongoing supervision I refer to the ability of the court to make pertinent remarks and enquiries with ineffective counsel, up to and including the ability of the court to remove ineffective counsel from the proceedings. The courts perform ex post supervision at the request of the accused, primarily in appeal or cassation proceedings, which may lead to annulment of the judgment of the lower court on grounds of ineffective counsel and the possibility of new proceedings for the accused.

This article focuses on direct judicial supervision and examines issues involved with both ongoing and ex post supervision. The author has intentionally omitted indirect supervision-e.g., complaints lodged with the Bar Association-as proper treatment of this broad topic is not possible within the limits of this article.

1. The right of the accused to the assistance of counsel

According to Article 6, paragraph 3 (c) of the European Convention on Human Rights and Fundamental Freedoms ¹² (hereinafter 'ECHR'), everyone charged with a criminal offence has the right 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. While the right to choose counsel is deemed to be an absolute right and is by some authors considered to be the best of the alternatives provided for in Article 6 3 (c) ¹³ , the ECtHR has in certain cases found limitations of this right to be justified¹⁴. For example, the ECtHR has held that the national court may override the choice of the person charged with a criminal offence when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice¹⁵. The ECtHR also accepts that national law may proscribe certain conditions for persons who have the right to act as counsel in criminal proceedings. It is also permissible for national law to lay down even stricter rules for those who wish to defend persons in supreme courts¹⁶. In the case of Engel and others v. Netherlands, while the ECtHR recognised that the right of the person to choose counsel was limited, it held that there was no violation of Article 6 3 (c) of the ECHR, as the persons charged were, in view of the simplicity of the case, capable of defending themselves¹⁷. Strong criticism has been voiced against the case law of the ECtHR that allows for limitations to a person's right to choose counsel, and it has been suggested that that ECtHR should change its position on this issue. Yet critics fail to fully agree as to the lengths to which judicial authorities should go to ensure the active participation of counsel in criminal proceedings¹⁸. There is a general tendency to agree with the ECtHR ¹⁹ in holding that counsel must demonstrate a certain amount of initiative to participate in the proceedings (e.g., request permission to be present during the questioning of a witness or suspect), but if counsel fails to do so, there is no violation of a person's right to counsel²⁰. In cases where counsel abuses a person's right to assistance of counsel, with the intention of delaying the proceedings, by systematically failing to appear in court and thereby causing the trial to be repeatedly postponed, the court has the right to limit the person's right to choice of counsel and to appoint counsel for the person charged with a criminal offence²¹. In such cases, the principle embodied in Article 17 ECHR applies, by which the Convention does not protect any abuse of the law²².

Although a person's right to assistance of counsel for his or her defence was provided for in the US Constitution ²³ already at the time of adoption of the Bill of Rightsin 1789, it was not until 1932 that a case concerning a person's right to defence was brought before the Supreme Court²⁴. In its judgment, the Supreme Court held that denial of counsel to the defendant constituted a violation of the Fourteenth Amendment, yet what is more important is that the Court recognised that a defendant in a capital case who is unable to employ counsel or defend himself has the right to have counsel appointed²⁵. Another ten years later, the Supreme Court held that the right of assistance of counsel for a person's defence is protected by the Fourteenth Amendment, and a person must be guaranteed the assistance of counsel where this is necessary in the interests of a fair trial²⁶. The Supreme Court's position halted the development of the right of assistance of counsel for a person's defence as a fundamental right for some time and drew much criticism and dissatisfaction²⁷. In 1963, the Supreme Court finally ruled that all defendants, regardless of the charges against them or the specific criminal case at issue, have the right under the Sixth Amendment of the Constitution to court-appointed counsel²⁸.

In Estonia, the right of a suspect or the accused to assistance of counsel is guaranteed by § 8 3), § 34 (1) 3), and § 35 (2) of the CCP. The right to counsel of a person who is deprived of his or her liberty because he or she is suspected of a criminal offence is prescribed separately in § 21 (1) of the Constitution of the Republic of Estonia²⁹. Participation of counsel is normally mandatory in criminal proceedings as of the presentation of the criminal file for examination, but in the cases set out in § 45 (2) of the CCP ³⁰ , assistance of counsel must be guaranteed throughout the criminal proceeding. If a criminal proceeding has not yet reached the stage at which...