The Right to Choose Counsel in the Pre-trial Stage of Criminal Proceedings and Consequences of its Violation, by Example of Estonian Supreme Court Decision 3-1-2-2-14

Author:Anneli Soo
Pages:124-132
SUMMARY

The right to counsel is one of the most important rights that accused persons have in criminal procedure, as it helps to guarantee that all other rights of accused persons are respected throughout the procedure. According to the European Convention on Human Rights, the accused has a right to either choose counsel or be provided with legal-aid counsel. Exercising the right to choose one’s counsel... (see full summary)

 
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Anneli Soo
PhD, Lecturer of Criminal Law
University of Tartu
The Right to Choose Counsel
in the Pre-trial Stage of Criminal
Proceedings and Consequences
of its Violation,
by Example of Estonian Supreme Court Decision 3-1-2-2-14
1. Introduction
According to Article 6 (3) c of the European Convention on Human Rights (ECHR),*1 everyone charged
with a criminal offence has the right to choose to defend himself in person; to do so through legal assis-
tance of his own choosing; or, if he has insuf cient means to pay for legal assistance, to be given it free of
charge when the interest of justice so requires. One does not have to possess a legal education to name the
reasons for which accused persons should have counsel by their side in criminal proceedings (including
pre-trial proceedings). First, counsel has knowledge of law and experience in court practice, along with
skill in both informing the accused about his rights and exercising these rights accordingly (the technical
aspect). Secondly, counsel, unlike the accused, is (or at least is supposed to be) objective (the psychological
aspect). Thirdly, counsel provides not only technical but emotional support for the accused (the humanitar-
ian aspect). Finally, although the principle in dubio pro reo applies in criminal proceedings, which means
that the accused does not have to prove himself to be not guilty, participation of counsel guarantees that
the accused is able to pursue an active role in the proceedings whenever necessary (the structural aspect).*2
Or, as the European Court of Human Rights (ECtHR) has put it in brief, the accused’s lawyer serves as ‘the
watchdog of procedural regularity’.*3
S. Trechsel has written that a defence conducted with the assistance of chosen counsel is certainly the
best of the three alternatives offered by Article 6 (3) c.*4 He does not explain what he means by the concept
1 Convention for the Protection of Human Rights and Fundamental Freedoms. Available at http://www.echr.coe.int/Docu-
ments/Convention_ENG.pdf (most recently accessed on 20.2.2015).
2 S. Trechsel. Human Rights in Criminal Proceedings. Oxford: Oxford University Press 2005, pp. 244—247 DOI: http://dx.doi.
org/10.1093/acprof:oso/9780199271207.001.0001 ; E. Cape et al. Effective Criminal Defence in Europe. Antwerp: Intersentia
2010, p. 38.
3 Ensslin, Baader and Raspe v. Germany, applications 7572/76, 7586/76, and 7587/76, of 8.7.1978, paragraph 114.
4 S. Trechsel (see Note 2), p. 266.
124 JURIDICA INTERNATIONAL 23/2015
http://dx.doi.org/10.12697/JI.2015.23.13

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