The right to legal aid in criminal proceedings is a fundamental right and is
considered a fundamental component of a fair trial in the most important
European and international legal instruments.
Section 6 (3C) of the European Convention on Human Rights provides that all
those who have been convicted of a criminal offense ... may be charged with ...
The same words can be found in Article 14 (3d) of the International Convention
on Civil and Political Rights, in which the individual's right to not be forced
to testify against him or plead guilty [Article 14 (3g)] is expressly
Article 47 (2) of the European Union's Fundamental Rights Charter, enacted with
the Treaty of Lisbon, provides that it is possible for all to be instructed,
protected and represented, while Article 48 (2) respects the right to protect
any accused. The right of all persons to seek the assistance of a lawyer who
wishes to defend and establish their rights and to protect them in all stages of
criminal activity The basic principles of the role of accepted lawyers are
stated. Havana in 1990 (at 1).
In fact, it is the right to legal aid that ensures the effective use of all
other procedural rights in criminal proceedings.
Role of European Court of Human Rights
The ECHR has issued a significant number of verdicts on the right to legal aid
in criminal proceedings.
In Murray v. England
(Judgment of 8.2.1996), where national laws have
consequences for the attitude of the accused at the initial stage of the police
investigation, section 6 ECHR generally permits the perpetrator to seek the
assistance of an attorney already in the early stages of the police
investigation to benefit.
The court has made its judicial decision in Saltus v. Turkey
, (Judgement dated
27.11.2008). This landmark ruling is the first in a series of rulings that have
clarified various key aspects of the right to legal aid in criminal proceedings.
In Saltus, the Grand Chamber of the Court highlights the importance of
approaching an attorney, particularly in cases where serious allegations are
involved and that the right to a fair trial is a practical and effective
section 6 § 1, as a rule, by the police. First Visa Ai from a lawyer to have
The judges Cassadeval and Türmen joined by Judge Zagrebelsky (Tribunal
President Nicolas pirates the Consensus View), It's just that ... police
custody at the beginning of the trial before the detention of the accused is a
person who is a lawyer, assisted. The bike should have also investigated only
when we and detained an accused person against the activities of the justice
that he can receive (and those who care for the provision of consultancy), the
case of the debate, the security system, the accused positive evidence
collection, investigation, preparation, initialization A full range of services,
especially those related to legal aid, including support for the victim in crime
and the verification of his or her condition. Detention and more
This important part of the above-mentioned concept entered the main body of the
judicial system of the court in Dayanan v. Turkish Court of Decree
dated, Dec. 13.10.2009,).
In Dayan, the court found that Section 6 (3) was
violated, that the respondent exercised his right to silence and made no
confession while in police custody. Several important rulings have been made in
recent years by reference to the Court's position on key elements of the right
of protection, following the Salutus doctrine.
For example, the court has set
high standards on the validity of the right to legal aid in Ponovitz v.
(judgment dated, 11.12.2008) and Pischalnikov v Russia
24.9.2009). Being a fundamental right and the mu of Section 6 of the Convention
Ensuring the effectiveness of the enhanced guarantees is a prime example of
those rights that require special protection of knowledge and intellectual
In Pavlenko v. Russia
(Judgment dated 1.4.2010) the court emphasized to him the
priority of the prosecutor chosen by the suspect.
Issues Associated with this Right
I conclude by addressing five issues from a lawyer's perspective, which are
constantly in dispute.
Time and scope of the right to access a lawyerEarly access to a lawyer is crucial to guarantee that the protection rights are
practical and effective, not theoretical and illusory.
Lawyers are not a hindrance to the smooth and efficient implementation of
criminal investigations. An active defense lawyer not only protects the suspect
from coercion and other misconduct but also contributes to his role in getting
the truth on the table.
Wild procedures during police investigations create inadmissible or unreliable
evidence, while an attorney’s early participation in the investigation ensures
the quality and acceptance of evidence in subsequent proceedings.
Derogations form the right to access a lawyerDisrespect from the right to access a lawyer should be treated with great
caution. The particular circumstances in the light of the suspension from
compelling reasons to justify such regulation should be:
- questionable actions of the investigators involved in an independent
judge to be recognized
- strictly time should be minimal and the purpose (e.g. other people's
life or freedom More immediately, to prevent danger)
- actions in connection with the suspected person prevent,
- a source of suspicion when he did not allow criminal reports for access
to a lawyer of his right to such a loss.
Confidentiality of communicationsAll communications between the suspect and his attorney will be confidential.
In response to the Council dated 06.06.2012, the CCPE stated that there is a
strong notion that there should be no exception to the principle of
confidentiality, which is a fair test and must remain the basic principle of
As the ECHR put it in its judgment Castravet v Moldova (judgment dated
An important element of a lawyer's effective representation of the client's
interests is the protection of the confidentiality of the information exchanged
between them. If it without surveillance, his assistance would lose its reward
... (see also Sakhnovskiy v Russia, judgment dated, 2.11.2010)
To justify intercepting their communications at the risk of contact between
suspects and prosecutors is fundamentally false. Partnering with a suspect to
perform criminal acts is not part of the lawyer's client communications with the
aim of protecting the client against the charges he is facing. If there is
evidence indicating criminal involvement in the breach of a lawyer's duties,
proceedings against him may be opened as provided in domestic law.
Effective solutions against infringement of the right to access a lawyer in its
various aspects are of paramount importance. No evidence of infringement of this
right should be admitted and relied upon in subsequent proceedings to punish the
accused. Admitting such tainted evidence undermines the fairness of criminal
proceedings and opens the door for miscarriages of justice. Moreover, it does
not incite the police and the authorities to use the wrong practices and
systematically violate the rights of the suspects.
The ECHR has emphasized in many rulings that a conviction based on such evidence
affects the right to a fair trial even if the accused person and his defense
counsel have the opportunity to challenge this evidence at subsequent hearings
(see for example Šebalj v Croatia
, judgement dated, 28.6.11).