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

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 insuff‌i 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