CEDH · CASELAW;CLIN;ENG — 15 novembre 2001

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Portugal (dec.) - 48188/99 Decision 15.11.2001 [Section III] Article 6 Article 6-3-c Defence in person Refusal to allow a lawyer to defend himself in criminal proceedings: inadmissible The applicant, who is a lawyer and auditor, was struck off the Bar Council roll by a decision of 1993, published in 2000, on the ground that the exercise of the one profession was incompatible with the exercise of the other. In 1996 the applicant was committed for trial at the Ponte de Lima Court for insulting a judge and was officially assigned a lawyer despite having expressed the wish to defend himself. His appeals against the committal order were dismissed on the ground that they had not been lodged by a lawyer and the applicant could not defend himself. He then applied to the Constitutional Court, complaining of his inability to defend himself. On account of having been struck off the Bar Councilroll, he was requested to instruct a lawyer in accordance with the Supreme Court Act. His submission that the Act was incompatible with the Constitution was rejected. In the meantime, the Ponte de Lima Court had set his case down for trial. On the first day of trial the applicant sought leave to defend himself, but his request was allegedly refused by the court. A lawyer was therefore officially assigned to represent him. The court found him guilty of insulting a judge and sentenced him to 170 day-fines and ordered to pay 600,000 Portuguese escudos in damages. His appeals were dismissed. The sentence, which had not been enforced, was extinguished pursuant to an amnesty law, but enforcement proceedings were instituted against him on the initiative of the prosecution for payment of the amount due in damages. Preliminary objections: (a) (victim): The amnesty from which the applicant had benefited had not remedied all the unfavourable consequences for him resulting from the proceedings since he still had to pay damages: objection dismissed. (b) (non-exhaustion): The question of the possible non-exhaustion of domestic remedies therefore overlapped with the question raised by the complaint, which was whether the applicant could claim to be able to defend himself in the criminal proceedings: separate examination therefore not necessary. Inadmissible under Article 6 § 1 and § 3 (c): The decision whether to allow an accused to defend himself or whether to assign him a lawyer fell within the margin of appreciation of the Contracting States, which were better placed than the Court to choose the means appropriate to enable their legal system to guarantee the rights of the defence, the main issue being that the interested party be in a position to present his defence in an appropriate manner and one in conformity with the requirements of a fair trial. In the case in question the grounds for requiring the applicant to be represented by a lawyer were sufficient and relevant. It was, among other things, a measure which was in the accused’s interests and aimed at securing him an effective defence, so that the domestic courts were justified in considering that the interests of justice required the compulsory assignment of a lawyer. The fact that the accused was himself also a lawyer did not call that finding into question: the relevant courts were entitled to consider, within the scope of their margin of appreciation, that the interests of justice required the appointment of a representative for a lawyer charged with a criminal offence and who might therefore, on that very ground, not be in a position to make an accurate assessment of the interests at stake and, accordingly, prepare effectively his own defence. In the case in question the applicant had had a proper defence: he had not alleged having been unable to present his own version of the facts to the courts and had been represented by an officially assigned lawyer at trial: manifestly ill-founded. [Confirmation of the precedents established by the Commission relating to compulsory representation by a lawyer and specific points for the case where the “accused” is himself a lawyer.]   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes