The Right of the Suspect to Counsel in Pre-trial Criminal Proceedings, Its Content, and the Extent of Application

• Author: Jaan Ginter - Anneli Soo
• Position: Professor of Criminology, University of Tartu - Ph.D., Fulbright-Schuman Scholar, California State University, Fullerton
• Pages: 170-178

170 JURIDICA INTERNATIONAL XIX/2012

Jaan Ginter Anneli Soo

Professor of Criminology Ph.D.,

University of Tartu Fulbright-Schuman Scholar

California State University, Fullerton

The Right of the Suspect

to Counsel in Pre-trial Criminal

Proceedings, Its Content,

and the Extent of Application

1. Introduction

In order to guarantee that the rights of a suspect are respected throughout the criminal proceedings, he

or she should have the right to counsel from the very early stages of the proceedings, at least immediately

upon arrest.*1 Nevertheless, as soon as this principle is recognised, several questions arise. First, should

this right be interpreted in such a way that the suspect has a right to counsel not only before procedural

acts that involve him or her but also during these acts? Secondly, should the right be absolute in nature?

In this article, it is suggested that the answer to the f‌i rst question is ‘yes’, and the arguments supporting

this perspective are brought out. Additionally, it is discussed that this right is subject to restrictions if the

suspect him- or herself agrees therewith or there are compelling reasons for this. For us to answer the two

questions mentioned above, f‌i rstly, the sources of the right of suspects to counsel in pre-trial proceedings

are explicated. Here legal acts and judicial practice from both Europe and the United States (US) are used as

examples, the latter being a state in which the principles of the right to counsel have been well under devel-

opment for a long time. Next, the advantages and disadvantages of guaranteeing the right to counsel during

pre-trial proceedings without any restrictions are analysed. Finally, warranted justif‌i cations for restriction

of the right to counsel in pre-trial proceedings are discussed, with mindfulness of the judicial practice of

the European Court of Human Rights (ECtHR), the Constitution of the Republic of Estonia*2, the (draft)

legislation of the European Union (EU), and the experience of the US.

1 Green Paper from the Commission—Procedural Safeguards for Suspects and Defendants in Criminal Proceedings throughout

the European Union (19.2.2003, COM(2003) 75 f‌i nal), Sections 4.1 and 4.3 (a).

2 Eesti Vabariigi põhiseadus. – RT 1992, 26, 349; RT I, 27.4.2011, 2 (in Estonian). The Constitution of the Republic of Estonia.

Unoff‌i cial translation available at http://www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=X0000K1&keel=en&pg

=1&ptyyp=RT&tyyp=X&query=p%F5hiseadus (most recently accessed on 16.8.2012).