CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 4 avril 2018

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background-color:#ffffff } .s3C4DB099 { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:10pt }       GRAND CHAMBER             CASE OF CORREIA DE MATOS v. PORTUGAL   (Application no. 56402/12)                     JUDGMENT     STRASBOURG   4 April 2018           This judgment is final but it may be subject to editorial revision.   In the case of Correia de Matos v. Portugal, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Guido Raimondi, President,   Angelika Nußberger,   Linos-Alexandre Sicilianos,   Helena Jäderblom,   András Sajó,   Nona Tsotsoria,   Işıl Karakaş,   Vincent A. De Gaetano,   Paulo Pinto de Albuquerque,   Aleš Pejchal,   Krzysztof Wojtyczek,   Iulia Motoc,   Síofra O’Leary,   Mārtiņš Mits,   Gabriele Kucsko-Stadlmayer,   Marko Bošnjak,   Lәtif Hüseynov, judges, and Françoise Elens-Passos, Deputy Registrar, Having deliberated in private on 8 February 2017 and on 20 November 2017, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in an application (no. 56402/12) against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Portuguese national, Mr Carlos Correia de Matos (“the applicant”), on 4 August 2012. 2.     The applicant was granted leave by a decision of the President of the Grand Chamber of 14 November 2016 to present his own case (Rules   71   §   1   and 36 §§ 2 and 3 of the Rules of Court). The Portuguese Government (“the Government”) were represented by their Agent, Ms   M.F.   da   Graça   Carvalho, Deputy Attorney-General. 3.     The applicant alleged that the decisions of the domestic courts refusing him leave to conduct his own defence in the criminal proceedings against him and requiring that he be represented by a lawyer had violated Article 6 § 3 (c) of the Convention. 4.     The application was allocated to the First Section of the Court (Rule   52 § 1 of the Rules of Court). On 18 September 2014 the Government were given notice of the application. It was subsequently allocated to the Fourth Section. On 13 September 2016 a Chamber of that Section, composed of András Sajó, President, Vincent A. De Gaetano, Paulo   Pinto   de Albuquerque, Krzysztof Wojtyczek, Iulia Motoc, Gabriele   Kucsko ‑   Stadlmayer and Marko Bošnjak, judges, and Marialena   Tsirli, Section Registrar, decided to relinquish jurisdiction in favour of the Grand Chamber, none of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72). 5.     The composition of the Grand Chamber was determined in accordance with the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 1 of the Convention). 6.     The applicant and the Government each filed a memorial on the admissibility and merits. 7.     A hearing took place in public in the Human Rights Building, Strasbourg, on 8 February 2017 (Rules 71 and 59 § 3). There appeared before the Court: (a)     for the Government Ms   M.F. da Graça Carvalho , Deputy Attorney-General,   Agent , Mr   L.E. Pereira de Azevedo , Public Prosecutor,   Adviser ; (b)     for the applicant Mr   C. Correia de Matos ,   Applicant .   The Court heard addresses by Ms da Graça Carvalho and Mr Correia de Matos and their replies to questions put by the judges. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 8.     The applicant was born in 1944 and lives in Viana do Castelo (Portugal). A.     Background to the case 9.     The applicant is a lawyer by training and an auditor by profession. From 1993 onwards, he was no longer authorised to practise as a lawyer. By   a decision of the Bar Council of 24 September 1993, the applicant was suspended from the roll, as the exercise of the profession of lawyer was considered to be incompatible with his practising as an auditor. This decision was published in the Official Gazette in June 2000. When the applicant ceased his activity as an auditor in April 2016, he continued to be suspended from the Bar Council’s roll until at least the end of 2016 as the result of a disciplinary sanction imposed on him for having practised as a lawyer while not being authorised to do so. 10.     On 28 February 2008, in the context of a set of civil proceedings in which he was nevertheless acting as a lawyer, the applicant criticised the decisions taken by the judge hearing the case, saying that they were not worthy of a judge and that a judge could not lie or omit the truth in the exercise of his functions. The judge in question filed a complaint for insult with the public prosecutor’s office. It is not clear from the material before the Court on what basis the applicant was acting as a lawyer in the context of those proceedings given the suspension from the roll referred to above. B.     The proceedings at issue 1.     The investigation proceedings 11.     On 10 February 2010 the public prosecutor’s office at the Baixo ‑ Vouga District Court filed the prosecution’s submissions against the applicant on a charge of insulting a judge. As the applicant had not instructed a lawyer, the public prosecutor’s office appointed counsel on the basis of Article 64 of the Code of Criminal Procedure (CCP) to conduct the applicant’s defence. 12.     On 12 March 2010 the applicant lodged a request with the Baixo ‑ Vouga Criminal Investigation Court for the opening of adversarial investigation proceedings ( abertura de instrução ; see paragraph 39 below). He also sought leave to replace his officially appointed defence counsel and represent himself. 13.     In an order of 7 September 2010 the court agreed to open the investigation but dismissed the request for officially appointed defence counsel to be replaced and for the applicant to conduct his own defence. It   held that the applicant was not entitled to act in the proceedings without the assistance of defence counsel. The court held that under the provisions of Portuguese law, in particular Article 32 of the Constitution and Articles   64 § 3 and 287 § 4 of the CCP (see paragraphs 28, 33 and 40 below), the defendant had the right to be represented by independent counsel, a right which would not be made effective if self-representation were to be allowed. Referring to the Constitutional Court’s case-law on the subject, the court found that a defendant who was a lawyer could therefore not act in proceedings as his own counsel. 14.     The applicant lodged an appeal with the Coimbra Court of Appeal against the order of 7 September 2010, challenging the decision not to allow him to represent himself in the criminal proceedings. 15.     On 21 December 2010 the Coimbra Court of Appeal dismissed the applicant’s appeal. It considered the appeal to be admissible despite the fact that it had been lodged by the applicant in person, as it concerned the very issue whether the applicant, as the defendant, was entitled to conduct his own defence. The Court of Appeal stressed that Portuguese law on criminal procedure did not allow the procedural status of defendant to be combined with that of defence counsel in the same proceedings. It required that the defendant be assisted by defence counsel at the hearing before the investigating judge and at the trial in all cases where the proceedings concerned could give rise to a custodial sentence or a public-safety detention order. This reflected the premise that the accused would be better defended when the defence was conducted by a legal professional trained in advocacy. The latter, unencumbered by the emotional burden weighing on a defendant, could provide a lucid, dispassionate and effective defence. The   law on criminal procedure was thus intended not to place limits on the defence’s action, but to support the proper defence of the accused. 16.     On 11 May 2012 the Constitutional Court decided that it was not necessary to adjudicate on the constitutional appeal lodged by the applicant in person, in which he had complained about the lower courts’ refusal to grant him leave to represent himself. The Constitutional Court found that the appeal had been neither signed nor endorsed by court-appointed defence counsel. The latter had not replied to the Constitutional Court’s query of 11   April 2012 as to whether she endorsed the constitutional appeal signed by the applicant himself. 17.     On 20 September 2012 the Baixo-Vouga investigating judge held a hearing ( debate instrutório ), of which the applicant had been notified in person. The judge had previously refused to adjourn the hearing at the applicant’s request, finding that the Court of Appeal had already given a final ruling on the applicant’s application to represent himself. The   applicant failed to attend the hearing, at which his court-appointed counsel was present. The investigating judge confirmed the charge against the applicant and referred the case for trial ( despacho de pronúncia ) before the Baixo-Vouga Criminal Court. 2.     The trial proceedings 18.     On 12 December 2013 the Baixo-Vouga Criminal Court, following a hearing which the applicant again did not attend but at which his court ‑   appointed defence lawyer was present, found the applicant guilty of aggravated insult (see paragraph 50 below) and ordered him to pay 140 day ‑ fines of nine euros (EUR) each as well as the costs of the proceedings. 19.     The applicant, who at no point requested legal aid to cover the cost of his trial, court-appointed counsel or counsel of his own choosing, was ordered, in particular, to pay costs amounting to EUR 150 for his representation by court-appointed counsel. He did not pay these costs and the execution of the cost order was later discontinued for lack of assets which could be seized. 20.     In an order dated 1 May 2014 the Baixo-Vouga Criminal Court rejected an appeal by the applicant against the judgment as inadmissible, on the ground that the appeal had not been signed by court-appointed defence counsel or by a lawyer instructed by the applicant. It confirmed that, as had previously been decided in a final decision, the applicant, as the defendant, did not have the right to represent himself in the proceedings. 21.     By an order dated 18 November 2014 the Porto Court of Appeal, acting through its President, dismissed a complaint lodged by the applicant in person against the order of the Baixo-Vouga Criminal Court. 22.     The Court of Appeal reiterated that, according to Portuguese law and well-established case-law, defendants in criminal proceedings, even if they were themselves lawyers, could not represent themselves but had to be assisted by defence counsel. It stressed that, as had also been argued by the General Council of the Bar Association in Opinion No. E-21/97 (see   paragraphs 59-60 below), the provision of a criminal defence constituted a public-order interest. Therefore, the right to a defence could not be waived, even if this meant imposing a defence lawyer on the accused. Moreover, in adversarial proceedings the powers vested by law in the defence were incompatible in many situations with the position of the defendant. This was also clearly the case at the trial, taking into account, for example, the places to be occupied in the courtroom, the wearing of a gown and the cross-examination of witnesses. 23.     The Court of Appeal noted that the Constitutional Court had repeatedly confirmed, in particular in judgments nos. 578/2001 and 196/2007 (see paragraphs 52-55 below), that this interpretation and the corresponding legislation – including Article 64 § 1 (d) of the CCP, which stipulates that only defence counsel can lodge appeals (see paragraph 33 below) – was in keeping with the Constitution. Likewise, this approach was not in breach of the International Covenant on Civil and Political Rights (ICCPR) or of the Convention. In Portugal, the accused had an array of procedural rights which went beyond the minimum standards guaranteed by these international instruments. 24.     The Court of Appeal explained that Portuguese law on criminal procedure granted accused persons ample opportunity to defend themselves in person. The defendant had a very comprehensive right to intervene in person at any time in the proceedings in order to make requests, offer points of clarification, reply, explain or submit statements (see, in particular, Articles 61 § 1 (b), 98 § 1, 272 § 1, 292 § 2, 332, 341(a) and 343 §§ 1 and 2 of the CCP; paragraphs 30, 42 and 44 below). He also had the right to be the last person to address the court, immediately following the pleadings and before delivery of the judgment (see Article 361 § 1 of the CCP, paragraph   45 below). There was a distinction between, and a dual safeguard emanating from, the mandatory instruction of a lawyer to ensure the accused’s “technical” defence and the possibility for the accused to be present and to intervene in the proceedings. 25.     Lastly, the Court of Appeal noted that, having no valid reasons to depart from an interpretation rooted in case-law and legal literature, Portugal had not amended its law in this regard either before or after the Views adopted in 2006 by the United Nations Human Rights Committee (see paragraphs 63 et seq. below). 26.     As the applicant had not appointed counsel following his application to have the order of 18 November 2014 quashed, the Baixo-Vouga Criminal Court’s judgment of 12 December 2013 became final on 6 January 2015. 27.     According to the material before the Court, the applicant did not call into question the qualifications or quality of the court-appointed lawyer at any stage in the proceedings before the domestic courts. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Provisions on defence in criminal proceedings 1.     The Constitution 28.     Article 32 of the Constitution of the Portuguese Republic, entitled “Safeguards in criminal proceedings”, in so far as relevant, provides: “1.     Criminal proceedings shall provide all the necessary safeguards of the defence, including the right to appeal. ... 3.     The defendant shall have the right to choose counsel and to be assisted by him in relation to every procedural act. The law shall specify those cases and stages of the proceedings in which the assistance of a lawyer is mandatory. ...” 2.     The Code of Criminal Procedure (a)     General provisions on defendants and defence counsel 29.     Articles 57 et seq. of the Code of Criminal Procedure (CCP) lay down provisions regarding defendants and their defence counsel. The   relevant provisions, in the version in force at the relevant time, are set out below. 30.     Article 61 of the CCP on procedural rights and duties provides: “1.     Unless otherwise provided for by law, the defendant shall, at all stages of the proceedings, have the right to: (a)     be present for all procedural acts that directly affect him; (b)     be heard by the court or by the investigating judge whenever these render a decision that personally affects him; (c)     be informed of the charges against him prior to making any statements before an authority; (d)     refuse to answer any questions put by an authority concerning the charges against him and the substance of his statements in that regard; (e)     choose a lawyer or ask the court to appoint defence counsel to represent him; (f)     be assisted by defence counsel in all procedural acts in which he takes part ...; (g)     take part in the investigation and examination of the case, adduce evidence and request any necessary measures; (h)     be informed of his rights by the judicial authority or police body before which he is required to appear; (i)     appeal, under the law, against any decisions to his detriment. ...” 31.     Article 62 of the CCP on defence counsel reads as follows: “1.     The defendant may instruct counsel at any stage of the proceedings. ...” 32.     Article 63 of the CCP on the rights of defence counsel provides: “1.     Defence counsel shall exercise the defendant’s statutory rights, save those reserved for the defendant himself. 2.     The defendant may revoke any measure carried out on his behalf by defence counsel, provided that he does so by means of an explicit statement before any decision has been taken in respect of the measure in question.” 33.     Rules on compulsory assistance are laid down in Article 64 of the CCP which, prior to its amendment by Law no.   20/2013 of 21 February 2013, provided: “1.     Assistance by defence counsel shall be compulsory: (a)     during the questioning of a defendant who has been arrested or detained; (b)     during the hearing before the investigating judge ( debate instrutório ) and the court hearings, except in proceedings which cannot result in a custodial sentence or a preventive measure entailing detention ( medida de segurança de internamento ); (c)     in any procedural acts other than the person’s formal declaration as a defendant, and in cases where the accused has any visual, hearing or speaking impairment or is illiterate, cannot understand Portuguese, is less than 21 years old, or where the issue of his exclusion from or diminished criminal responsibility has been raised; (d)     in the event of an ordinary or extraordinary appeal; ... (f)     where the trial takes place in the absence of the defendant; (g)     in the other cases determined by law. 2.     In cases other than those referred to above, the court may appoint defence counsel for a defendant, at the court’s or the defendant’s request, where the specific circumstances of the case demonstrate that it is necessary or appropriate for the defendant to be assisted. 3.     Subject to the provisions of the preceding paragraphs, if the defendant does not have a lawyer or officially appointed defence counsel, the appointment of counsel shall be compulsory from the point at which the person is formally charged. ... 4.     In the cases provided for by paragraph 3 above, the defendant shall be informed, in the document setting out the charges, that, if found guilty, he must pay defence counsel’s fees except if he is granted legal aid, and that he may replace defence counsel by a lawyer of his own choosing.” 34.     Since its amendment by Law no. 20/2013 of 21 February 2013, Article 64 § 1 of the CCP reads as follows: “1.     Assistance by defence counsel shall be compulsory: (a)     during the questioning of a defendant who has been arrested or detained; (b)     during questioning by a judicial authority; (c)     during the hearing before the investigating judge and the court hearings; (d)     ...” The further sub-paragraphs (d) to (h) of the amended Article 64 § 1 essentially reproduce the text of sub-paragraphs (c) to (g) in the previous version of Article 64 § 1. 35.     As regards the evolution of the rules on compulsory assistance in Portuguese law, it is apparent from Article 22 § 1 of the CCP of 1929 (adopted by Legislative Decree no. 16489 of 15   February 1929) that there were already certain situations at that time in which assistance by a lawyer was compulsory. Following the adoption of the Portuguese Constitution in 1976, the CCP of 1987 (adopted by Legislative Decree no.   78/87 of 17   February 1987 further to Law no. 43/86 of 26 September 1986 authorising the Government to approve a new CCP) established an adversarial criminal procedure and reinforced the legal position of the public prosecutor’s office, but also that of the accused, in order to ensure effective equality of arms and to avoid all measures which could prejudice the accused’s personal dignity (see point III.10 of the Preamble to the CCP of 1987 and point 3 of section 2 of Law no. 43/86). Article 64 § 1 of the CCP, as amended in 1987, provided for compulsory assistance by defence counsel notably during the first judicial questioning of the defendant and during the hearing before the investigating judge and the court hearings, except in proceedings which could not result in a custodial sentence or a preventive measure entailing detention. Assistance by counsel was also compulsory in appeal proceedings. Law no. 59/98 of 25 August 1998, as well as Law no. 48/2007 of 29 August 2007 and Law no. 20/2013 of 21   February 2013 maintained the requirement of mandatory assistance in criminal proceedings and extended it to other procedural acts (see   paragraphs 33 and 34 above and 36 and 37 below). According to the information available to the Court when Article 64 of the CCP was examined in 2007, three different proposals were submitted to Parliament by the Government and other political groups. The Government proposal, which was ultimately approved by a majority, indicated that one of the goals of the reform was to extend compulsory representation by a lawyer. 36.     Section 1(10) of the Lawyers Act (Law no. 49/2004) of 24 August 2004, which was applicable at the material time, further provided: “Where the Code of Criminal Procedure requires the defendant to be assisted by defence counsel, that function shall be carried out by a lawyer under the terms of the law.” 37.     The Portuguese courts interpret Law no. 49/2004 of 24 August 2004 to the effect that a defendant who is a registered lawyer may never represent himself in criminal proceedings and must be represented by another registered lawyer. They consider the practice of advocacy to be incompatible with any duties or activities – such as those which result from being a defendant in criminal proceedings – which might impair the independence and dignity of the profession (see, for instance, Supreme Court case no. 279/96, judgment of 1   July 2009). 38.     Article 66 of the CCP on court-appointed defence counsel further provides: “1.     Where defence counsel is appointed by the court, the defendant shall be notified thereof if he was not present at the material time. ... 3.     The court may replace court-appointed defence counsel at any time on an application by the defendant that contains a valid ground. ... 5.     Court-appointed counsel shall perform his duties for remuneration, the amount and terms of which shall be decided by the court within the limits set by the scale fixed by the Ministry of Justice ... The payment shall be made, depending on the case, by the defendant, the party assisting the public prosecutor ( assistente ), the civil parties or the Ministry of Justice.” 39.     Furthermore, the provisions relating to the investigation proceedings contain further general rules on defendants and counsel. The investigation stage ( instrução ) comprises the adversarial judicial supervision of the prosecution’s investigation by the investigating judge, as explained in Article 286 of the CCP: “1.     The investigation stage aims to ensure judicial scrutiny of a decision to prefer charges ( acusar) or to discontinue an investigation ( arquivar) , with the aim of deciding whether or not to refer the case for trial. 2.     The investigation stage is optional. ...” 40.     Article 287 of the CCP lays down rules on the application for opening of the investigation stage. It provides in paragraph 4: “In making the order opening the investigation stage, the investigating judge shall appoint defence counsel in cases where the defendant is not represented by a lawyer or court-appointed defence counsel.” (b)     Further relevant provisions concerning the conduct of criminal proceedings and the respective roles of the defendant and counsel therein (i)     The defendant’s position 41.     In criminal proceedings, the defendant may at any time address the court, file observations, statements and requests with a view to protecting his fundamental rights, and may be the last person to address the court prior to its deliberations (see Articles 61 § 1 (b), 98 § 1, 272 § 1, 292 § 2, 332, 341 (a), 343 §§ 1 and 2 and 361 § 1 of the CCP). The relevant provisions, in so far as they have not been set forth above, provide as follows. 42.     Article 98 § 1 of the CCP on observations, statements and requests provides: “The defendant ... may file observations, statements and requests at every stage of the proceedings, even if these are not signed by counsel, provided that they are relevant to the subject-matter of the proceedings or are aimed at protecting his fundamental rights. These observations, statements and requests shall always be included in the case file.” 43.     It is stressed in the domestic courts’ case-law that the right under Article 98 § 1 of the CCP “is a practical expression of the constitutional right of petition enshrined in Article 52 of the Constitution” (see Supreme Court of Justice, no. 2300/08, judgment of 25 September 2008, Paragraph   I). However, it is not designed to allow the defendant to take the place of defence counsel. The defendant must be assisted by defence counsel during all the procedural acts in which he participates, and especially those which require legal rigour (see Supreme Court of Justice, no.   2300/08, judgment cited above, which the Coimbra Court of Appeal followed, referring to previous case ‑   law, in its judgment of 3 June 2015 (no.   2320/12.2TALRA   A.C1)). 44.     As to the defendant’s right to address the court, Article 272 § 1 of the CCP provides that if an investigation is pending against a specific person in respect of whom there are reasons to suspect that he committed a criminal offence, that person must be questioned as a defendant. Under Article 292 § 2 of the CCP, the investigating judge must question the defendant as soon as he considers it necessary and each time the latter requests it. The presence of the defendant is required save in exceptional cases specified by law (Article 332 § 1 of the CCP). The examination of the evidence at the trial starts with the defendant’s statements (Article 341 (a) of the CCP). The presiding judge informs the defendant that he has the right to make statements at any time during the trial, provided that they are relevant to the object of the proceedings, and that he has the right to remain silent (Article 343 § 1 of the CCP). If the defendant agrees to make statements, the court must hear his account in its entirety, subject to the provisions of the preceding paragraph (Article 343 § 2 of the CCP). 45.     After the oral pleadings of the public prosecutor’s office and defence counsel in particular, the presiding judge asks the defendant whether he wishes to make any other statements in his defence and listens to whatever he has to say in his favour (Article 361 § 1 of the CCP; for the interpretation of that provision by the domestic courts see paragraph 24 above). (ii)     Defence counsel’s position 46.     As to the role of defence counsel, Article 302 §§ 2 and 4 of the CCP, on the conduct of the hearing before the investigating judge, provides that the judge gives the public prosecutor’s office, the lawyer of the prosecuting authority’s assistant ( assistente ) and defence counsel the opportunity to request the taking of additional evidence and to summarise their conclusions as to the sufficiency of the evidence gathered and the questions of law which arise. 47.     Under the CCP, at the trial the statement as to which facts the defence intends to prove in the proceedings may be presented only by the defendant’s lawyer (and not by the defendant in person) (Article 339 § 2). Furthermore, only defence counsel may request that statements be made by the prosecuting authority’s assistant (Article 346 § 1) or by the victim (Article 347 § 1), and examine witnesses (Article 348) or suggest questions to be put to witnesses (Article 349) or to experts and technical advisers (Article 350 § 1). 48.     Moreover, only defence counsel is given the floor by the presiding judge, following the taking of evidence and the pleadings of the public prosecutor’s office in particular, in order to address the court in oral pleadings setting forth the conclusions, in fact and in law, to be drawn from the evidence produced (Article 360 § 1 of the CCP). B.     The Criminal Code 49.     Almost all offences laid down in the Portuguese Criminal Code carry the possibility of a custodial sentence, either in combination with or as an alternative to a fine. In exceptional cases, minor offences may be punishable by a fine only (see, for instance, the offences of falsification of or using falsified sealed or stamped items under Article 268 §§ 3 and 4 of the Criminal Code, or the offence of simulation of an administrative offence under Article 366 § 2 of the Criminal Code). 50.     Under Articles 181 § 1, 182 and 184, read in conjunction with Article 132 § 2 (l) of the Criminal Code, the offence of aggravated insult, proffered against a judge in the exercise of his functions, is punishable by a maximum term of imprisonment of four months and fifteen days or a maximum of 180 day-fines. C.     Provisions on legal aid 51.     The granting of legal aid (see also paragraph 33 above) is governed by Law no. 34/2004 of 29 July 2004 (as amended by Law no. 47/2007 of 28   August 2007). Under section 8(1) of Law no. 34/2004, legal aid is granted to persons who lack the financial resources to meet the costs of the civil or criminal proceedings before a court in which they are involved. In   accordance with section 16(1) of that Law, legal aid can take, inter alia , the following forms: (1) appointment of a legal representative and payment of his costs, (2) payment of the fees of defence counsel already appointed by a court, and/or (3) full or partial exemption from court fees and other procedural costs. In cases in which legal aid is granted in the form of the appointment of a legal representative, the Bar Association will be responsible for choosing and appointing a lawyer, in accordance with its statutes and rules (see sections 30(1) and 45 of Law no.   34/2004). The   recipient of legal aid may, in any proceedings, request the Bar Association to replace the appointed legal representative, giving reasons for the request (section 32(1) of Law no. 34/2004). D.     Domestic practice 1.     The Constitutional Court’s case-law (a)     Case-law on mandatory representation in criminal proceedings 52.     In judgment no. 578/2001 of 18 December 2001 the Constitutional Court held, by three votes to two, that the legislative choice to require accused persons to be represented by defence counsel in criminal proceedings, even if they were themselves lawyers duly registered with the relevant Bar Association, was not incompatible with the Constitution and in particular with Article 32 thereof (see paragraph 28 above). 53.     The Constitutional Court found that the statutory provisions in question (see Articles 61, 62 and 64 of the CCP, referred to in paragraphs   30, 31 and 33 above), interpreted to the effect that they made it mandatory, in criminal proceedings, for a lawyer to be appointed for the defendant, had the advantage of guaranteeing that the latter’s interests were defended in a dispassionate manner. The court considered that the defendant would lack the disinterested and dispassionate approach necessary for the proper conduct of the proceedings even if, in his naturally subjective view, he felt that his defence was better secured if he conducted it in person in the capacity of “counsel for himself”. It further referred to the series of statutory procedural rights granted to the defendant, notably in Article 61 § 1 and Article 63 § 2 of the CCP (see paragraphs 30 and 32 above), the latter giving the defendant the power to invalidate procedural measures taken by defence counsel in his name. 54.     Having regard to the case-law of the European Court of Human Rights and the legal literature, the Constitutional Court further found that Article 6 § 3 (c) of the Convention did not prevent States Parties from imposing, by law, an obligation for the defendant to be represented by a lawyer. It was for the States Parties to choose the defendant’s means of defence. 55.     The Constitutional Court subsequently confirmed that case-law (see,   inter alia , judgment no. 461/2004 of 23 June 2004, paragraph 5, and judgment no. 196/2007 of 14 March 2007, paragraph 3). In other decisions, the court further explained that the requirement to instruct a lawyer was based on compelling substantive reasons aimed not only at protecting public order, and in particular the interest in the implementation of justice and the law, but also at protecting the interests of the persons represented by counsel (see   judgment no. 252/97 of 18 March 1997, paragraph 11). Representation by counsel in criminal proceedings was designed to ensure the participation of qualified professionals capable of ensuring the requisite technical preparations and observance of the ethical principles governing the profession (see judgment no. 461/2004, cited above, paragraph 5). (b)     Case-law on representation before the Constitutional Court 56.     In judgment no. 599/2000 of 21 December 2000 the Constitutional Court declared admissible the constitutional appeal of an appellant who was not represented by a lawyer but was a lawyer himself. The court found that Articles 61, 62, 63 and 64 of the CPP were not applicable to constitutional appeals and that there was no other provision which could be invoked to argue that lawyers ( advogados) could not intervene in person ( advogar em causa própria ) in constitutional appeal proceedings, in which representation by a lawyer was mandatory. 2.     The Supreme Court’s case-law 57.     According to the established case-law of the Supreme Court, a defendant in criminal proceedings cannot represent himself even if he is a lawyer or a judge. The Supreme Court considered that the statutory provisions authorising judges and lawyers to represent themselves before the courts were inapplicable in criminal cases (case no. 1501/97, judgment of 19   March 1998; case no. 3347/01, judgment of 6 December 2001; see   also case no. 7/14.0TAVRS.S1, judgment of 20 November 2014, paragraph IV). It further found that the rules of domestic law allowed accused persons to prepare their defence together with defence counsel; they could also submit observations, statements and requests which did not raise questions of law (case no. 7/14, cited above, paragraph XI). The Supreme Court stressed in that context that the dispassionate conduct of a case was a necessary additional safeguard in criminal proceedings (see case no.   7/14.0YGLSB.S1, judgment of 12 June 2014, paragraph B.3). In the situations covered by Article 64 § 1 of the CCP, the legislature presumed that the accused’s personal defence was weakened, thus increasing the need for technical assistance, which the accused could not refuse (see case no.   3236/04, judgment of 7 April 2005, paragraph IV). In criminal proceedings the responsibilities of defence counsel were incompatible with the status of an accused (see, for instance, case no. 3347/01, judgment of 6   December 2001, paragraph I). 3.     Case-law of the Courts of Appeal 58.     Different Courts of Appeal have reiterated the reasons given by the Constitutional Court and the Supreme Court for requiring defendants to be represented by defence counsel in criminal proceedings even if they were themselves lawyers (see, for instance, Porto Court of Appeal, no. 0240116, judgment of 5 June 2002, and Guimarães Court of Appeal, no. 390/04-2, judgment of 3 May 2004, paragraphs IV-VI). 4.     The Portuguese Bar Association’s view 59.     The General Council of the Portuguese Bar Association, in Opinion No. E-21/97 of 4 May 1999 issued at a lawyer’s request, found that the acknowledged right of lawyers to plead on their own behalf in accordance with the provisions of the Statute of the Bar Association did not extend to criminal proceedings in which the lawyer was the defendant. 60.     The General Council of the Bar Association argued that under the Portuguese Constitution criminal defence represented a public-order interest in the sense of a guarantee safeguarding the human dignity of all citizens including accused persons. The right to a defence could not, therefore, be waived and defence counsel could be imposed on defendants, exclusively in their interests. Moreover, in adversarial proceedings, the powers attributed by law to defence counsel could not, in many situations, be reconciled with the status of defendant. Under Portuguese law on criminal procedure a defendant in criminal proceedings, even if he was a lawyer, therefore had to be represented by a lawyer of his own choosing or by court-appointed defence counsel. 5.     The domestic courts’ practice concerning the authorisation of self ‑ representation 61.     Notwithstanding its request to that effect, the Court has not been provided by the parties with any example of a case in which a Portuguese court, since the entry into force of the Code of Criminal Procedure in 1987, authorised a defendant in criminal proceedings before it to conduct his or her own defence; likewise, it has not learnt of any such example from other sources. It emerges from the Portuguese courts’ judgments (see in particular the judgments cited in paragraph 57 above) that a number of requests of this nature were received and refused by the Portuguese criminal courts; the Court does not possess information on the exact number of requests of this nature refused by the domestic courts. III.     RELEVANT INTERNATIONAL LAW AND PRACTICE A.     The International Covenant on Civil and Political Rights 62.     Article 14 § 3 of the ICCPR, in so far as relevant, reads as follows: “In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: ... (d)     To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it. ...” B.     Communication No. 1123/2002 submitted by the applicant to the United Nations Human Rights Committee (HRC) and General Comment No. 32 of the HRC 1.     The Views adopted by the HRC 63.     On 1 April 2002 the applicant submitted a communication (No.   1123/2002) concerning Portugal to the United Nations Human Rights Committee (HRC) under the Optional Protocol to the ICCPR. He   complained that in a set of criminal proceedings in 1996 before the Ponte de Lima District Court for insulting a judge he had not been permitted to conduct his defence himself and had been assigned a lawyer to represent him against his will, in breach of Article 14 § 3 (d) of the ICCPR. 64.     The communication was based on the same facts as those at issue in an application previously lodged by the applicant with this Court on 17   April 1999. In its decision of 15 November 2001 ( Correia de Matos v.   Portugal (dec.), no.   48188/99, ECHR 2001 ‑ XII) a Chamber dismissed the application as manifestly ill-founded, finding that the applicant’s defence rights under Article 6 §§ 1 and 3 (c) of the Convention had not been breached (for further details see paragraphs 111-13 below). 65.     In its Views adopted on 28 March 2006, the HRC found, by twelve votes to four, that the applicant’s right to defend himself in person under Article 14 § 3 (d) of the ICCPR had not been observed. It argued, in essence, that the clear wording of the said provision provided for a defence to be conducted in person “or” through legal assistance of one’s own choosing, taking as its point of departure the right to conduct one’s own defence. The right to conduct one’s own defence, which was a cornerstone of justice, could be undermined when a lawyer whom the accused did not trust was imposed against the wishes of the accused. The latter might then no longer be able to defend himself effectively as such counsel would not be his assistant (see paragraph 7.3 of the HRC’s Views). 66.     In the HRC’s view, the right to defend oneself without a lawyer was not absolute. The interests of justice could require the assignment of a lawyer against the wishes of the accused, particularly in cases of a person substantially and persistently obstructing the proper conduct of the trial, or facing a grave charge but being unable to act in his own interests, or where it was necessary to protect vulnerable witnesses from further distress caused if the accused were to question them himself. However, any restriction on the accused’s wish to defend himself had to have an objective and sufficiently serious purpose and could not go beyond what was necessary to uphold the interests of justice (see paragraph 7.4 of the HRC’s Views). The   assessment whether in a specific case the assignment of a lawyer was necessary in the interests of justice had to be made by the competent courts (see paragraph 7.5 of the HRC’s Views). 67.     In the case before it, the HRC noted that under the Portuguese legislation and the case-law of the Supreme Court an accused could never be released from the requirement to be represented by counsel in criminal proceedings, even if he was a lawyer himself. It further observed that the law took no account of the seriousness of the charges or the behaviour of the accused. Moreover, Portugal had not provided any objective and sufficiently serious reasons to explain why, in the relatively simple case concerned, the absence of a court-appointed lawyer would have jeopardised the interests of justice (see paragraph 7.5 of the HRC’s Views). The HRC found that Portugal should amend its laws to ensure conformity with Article 14 § 3 (d) of the ICCPR (see paragraph 8 of the HRC’s Views). The majority of the HRC did not explicitly address the Court’s reasoning in its decision of 15   November 2001 concerning application no. 48188/99. 2.     General Comment No. 32 of the HRC 68.     The HRC reiterated its Views in respect of communication No.   1123/2002 in General Comment No. 32 entitled “Article 14 of the ICCPR: Right to equality before courts and tribunals and to a fair trial”, adopted at its 90th session (9 to 27 July 2007) (see document CCPR/C/GC/32, paragraph 37). 69.     In that same General Comment, the HRC also stated, by reference to communication No. 450/1991, I.P. v. Finland (paragraph 6.2 of the decision on admissibility adopted on 26 July 1993), that the “right of equal access to a court, embodied in article 14, paragraph   1, concern[ed] access to first instance procedures and [did] not address the issue of the right to appeal or other remedies.” 3.     Subsequent developments in Portu