BASIC ISSUES ON GUARANTEEING THE ACCUSED PERSON’S
Basic theoretical issues on the guarantee of the accused person’s right to defense
1.1.1 Historical views of the guarantee of the right to defense counsel
The right to defense counsel has deep historical roots, dating back several centuries, despite the absence of a formal definition in early legal history This concept is closely linked to trial judgments and is notably referenced in the Leges Henrici Primi, or the laws of King Henry I, which is considered the first written acknowledgment of this right in England, composed in the early 12th century While translations of this Latin text can vary, legal scholars consistently highlight a specific passage that emphasizes the importance of having a defender in criminal or capital cases, advocating for the accused to deny the charges without seeking counsel, while allowing their defender to pursue the necessary proof for their case.
During the Middle Medieval period, as analyzed by Donahue, an accused person was required to personally plead in a criminal trial without assistance from friends or family, known as consilium, prior to making their plea This meant that they had no support in presenting their case until after the plea was entered Once the plea was made, however, they were entitled to legal assistance from a pleader, akin to modern-day lawyers Donahue's analysis indicates that while initial support was restricted, the accused could ultimately receive legal help during the criminal proceedings.
1 Felix Rackow, The right to counsel: English and America Precedent, The William and Mary Quaterly, Third Series, Vol.11, No.1, (1954),
In exploring the historical context of the right to counsel during police interrogations, notable works include Charles Donahue, Jr.'s article in the Yale Law Journal (1964), which presents a compelling argument for this right, and the inquiry by Marvin Becker and George Heidelbaugh into the history and practice of the right to counsel in criminal cases in England and America, published in the Notre Dame Law Review.
3 Charles Donahue, supra note 2, pp 1027-28
Many scholars agree that in historical contexts, particularly regarding the Leges, the accused was primarily expected to defend themselves without assistance The right to legal counsel, when it existed, mainly addressed the legal aspects of the case Notably, in the 14th century, there are instances where individuals accused of felony were entirely denied the right to defense counsel.
The right to defense counsel emerged alongside the adversarial system in the late sixteenth and seventeenth centuries, driven by treason trials in England that highlighted the need for reform in how the accused defended themselves against the Crown Initially, this right focused on allowing defendants to represent themselves; however, practical challenges in court revealed the difficulties of self-representation, particularly in serious criminal cases Consequently, the notion that defendants should be supported by an attorney gained traction By the early seventeenth century, as the use of evidence in criminal trials increased, the right to defense counsel expanded to include lesser crimes and misdemeanors, as articulated by Bulstrode Whiteloke, who noted that even for minor offenses, individuals could have legal representation.
William Blackstone's "Commentaries on the Laws of England" (1769) provides foundational insights into legal principles, specifically in Volume 4, page 355 Additionally, Becker and Heidelbaugh discuss relevant legal topics in their work, pages 355-356 Herman Cohen's "A History of the Bar," originally published in 1929 and reprinted in 2005 by The Lawbook Exchange, Ltd., offers a comprehensive overview of legal history, particularly in pages 1-19.
In a notable case discussed by Chowdharay-Best in "The History of Right to Counsel," a knight accused of rape was informed by the judge that the king was a party to the prosecution, which meant the accused could not have legal counsel against the king The judge further elaborated that granting counsel would undermine the integrity of the trial, suggesting that a favorable jury decision could be perceived as biased, thereby discouraging any such concession.
7 See general John H Langbein, The Origins of the Adversary Trial, Oxford, 2003; Harry R Dammer, Erika Fairchild, Comparative Criminal Justice Systems, Thomson Wasdworth, 2006; Ronald Banaszak, Fair Trial
Right of the Accused, GreenWood Press, 2002
The adversarial system, prevalent in Common law countries like England and America, is a legal framework where the prosecution and defense counsel compete to uncover the truth during adjudication, while a judge ensures fairness and adherence to legal rules In contrast, the inquisitorial system, which emerged in the late 16th century in Spain and other Catholic nations, relies on judges to play a significant role in evidence determination, often employing various questioning methods, including torture France and Germany exemplify this inquisitorial approach.
9 A small coin of the United Kingdom worth six pennies; not minted since 1970
The introduction of defense counsel was a response to the English practice that forced defendants to represent themselves in serious criminal cases Since 1836, the right to counsel has been assured in both felony and misdemeanor trials, enhancing the self-defense right, which was often unsafe and sometimes prohibited This shift marked the beginning of a trial system that evolved into one dominated by lawyers, contrasting with the previous lawyer-free approach Consequently, a framework was established that guarantees defendants in common law countries the right to legal representation, becoming a fundamental aspect of adversarial trials.
The right to have counsel has historical roots in England, dating back to 1494 when Parliament enacted a law to provide free legal representation for the indigent in both criminal and civil cases This marked the beginning of a charitable approach to legal aid, although its practical application was limited Over the past five centuries, this tradition has evolved, yet the guarantee of defense counsel for the indigent has not been uniformly recognized across all legal systems, despite its acknowledgment in numerous international human rights conventions.
10 Bulstrode Whiteloke, Cobbett’s parliamentary history, 1343, cited in Chowdharay-Best, supra note 6, pp
In 1836, the Parliament enacted the 1836 Felony Act, which allowed individuals accused of felony to defend themselves with the assistance of counsel or an attorney This legislation eliminated the distinction between fact-law regarding the right to counsel and ensured that all individuals facing felony charges had the right to legal representation.
In a trial setting, both the accusing party and the accused are present, with the judge serving as an impartial arbitrator who oversees and directs all adversarial proceedings, ensuring that a fair judgment is rendered.
15 L H Baker, An Introduce to English Legal History 134, 2d Ed., (1979); Luther M Swygert, Should Indigent Civil litigants in the Federal Courts have a Right to Appointed Counsel, 39 Washington and Lee
18 Harry R Dammer, Erika Fairchild, supra note 7, pp 80-90
The adversarial system has significantly shaped modern lawmakers' understanding of justice, with scholars emphasizing the crucial role of legal counsel in ensuring fairness In England and other countries employing this system, judges recognize two key aspects of the right to counsel: the accused's entitlement to hire their own legal representation at their own expense, and the state's obligation to provide counsel for defendants unable to afford it These foundational elements trace the evolution of the right to defense counsel, which is now widely acknowledged and integrated into most criminal procedure systems.
The right to defense counsel, initially developed in England, influenced other European countries, including those with an inquisitorial system like France In the seventeenth century, France's criminal procedure was based on the inquisitorial system, which drew from Roman law However, unlike Common law, the right to defense counsel was not recognized in France at that time, as highlighted by Article 162 of the Ordinance of 1539, which explicitly stated that parties could not be represented by counsel and had to respond personally to the charges against them.
22 Esmein, History of Continental Criminal Procedure, (Vol 5 of Continental Legal History Series, 1913, at p.196) As quoted by Francis J Morrissey, Escobedo’s European Ancestors, ABA Journal, August 1966, Vol.52, pp 723-24
23 Harry R Dammer, Erika Fairchild, supra note 7, pp 142-43
Despite the strict language of the prohibition, the French judiciary has shown a degree of flexibility, allowing for some discretion in court decisions While some judges maintain a strict interpretation of the law and deny counsel, others have adapted to the circumstances, reflecting a more humane approach within the judicial system.
Guarantee of the right to defense counsel in international legal documents
From the above, we can see that implementing the right to a defence through counsel is an efficient way of guaranteeing the rights of the accused
1.2.1 Overview of the legal documents connected with the guarantee of the right to defense counsel
The right to defense counsel is a fundamental principle enshrined in numerous international human rights conventions This article will explore the guarantees provided by these conventions, examining their implications for practical law-making Additionally, it will review the legal frameworks of various countries to demonstrate their alignment with international standards on defense rights.
International legal documents affirming the right to defense counsel are grounded in the fundamental principle of the right to a fair trial These documents set forth international standards regarding defense counsel in Treaties (Conventions), which are legally binding for member countries.
On December 10, 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights (UDHR), which emphasizes the presumption of innocence for individuals charged with a penal offense Article 11(1) states that everyone has the right to be presumed innocent until proven guilty through a public trial that ensures all necessary guarantees for their defense While this article does not explicitly mention the right to defense counsel, subsequent interpretations have established that access to legal representation is a fundamental component of the right to a fair trial.
10 of the Declaration: “Everyone is entitled in full equality to a fair and public
The concept of humanitarian purpose has its roots in international human rights conventions In a regional context, the European Commission on Human Rights recognized humanitarianism as a crucial basis for ensuring the right to defense counsel in its report on Can v Austria (FS) dated September 30, 1985.
72 See also Stephan Trechsel, supra note 31, p 246
The right to defense counsel is a fundamental principle recognized in international legal instruments, reflecting the spirit of the Declaration that guarantees a fair hearing by an independent and impartial tribunal for individuals facing criminal charges or determining their rights and obligations This right is acknowledged in both the global context, through the United Nations, and in various regional frameworks.
The right to defense counsel is enshrined in Article 14 of the International Covenant on Civil and Political Rights (ICCPR), which guarantees that every individual charged with an offense has the right to adequate time and resources for preparing their defense Additionally, it ensures the ability to communicate with a chosen legal counsel and to defend oneself either personally or through legal representation of their choice.
Legal assistance will be provided to individuals who lack representation, ensuring justice is served without charge if they cannot afford it This right to defense counsel is supported by international instruments, including the United Nations Basic Principles on the Role of Lawyers and the Rome Statute of the International Criminal Court Additionally, organizations within the United Nations, such as the United Nations Commission on Human Rights (UNCHR), play a crucial role in interpreting and guiding the application of the International Covenant on Civil and Political Rights (ICCPR) regarding the right to defense counsel.
The right to defense counsel is recognized in various regional instruments across Europe, America, and Africa, with Europe leading in the protection of human rights through the European Convention on Human Rights (ECHR) Article 6 of the ECHR guarantees that the accused has the right to adequate time and facilities for preparing their defense, the option to defend themselves personally or through chosen legal assistance, and access to free legal aid when necessary for the interests of justice.
The expansion of the right to defense counsel is a topic of ongoing discussion in Europe, particularly among European Union member states The European Commission has consistently aimed to establish a comprehensive and coherent legal framework to support this right.
The European Union is committed to ensuring the basic procedural rights of accused individuals, with a strong emphasis on the right to defense counsel as a key element of fundamental human rights While the European Council has highlighted the necessity of this right for consistency among member states, the European Commission's efforts to implement these guarantees have faced challenges due to a lack of full support from all member nations.
To counter this, the Council of the European Union (the EU Council) presented a
On October 23, 2009, the Council adopted a resolution outlining a roadmap aimed at enhancing the protection of suspected and accused persons in criminal proceedings This roadmap establishes the European Convention on Human Rights (ECHR) as the foundational framework for safeguarding the rights of individuals involved in criminal cases, with the judgments of the European Court of Human Rights (ECtHR) serving as a basis for harmonizing the criminal justice systems across EU Member States and fostering mutual trust It also emphasizes the importance of procedural rights, including the right to legal counsel Furthermore, the Treaty of Lisbon, effective December 1, 2009, has unified various aspects of EU legislation and proposed a pathway for the European Union to accede to the ECHR.
The European Commission has proposed the standardization of basic procedural rights for the accused in the European Union, including the right to defense counsel This initiative was highlighted in the 2003 'Green Paper' (COM(2003)75 final), which aimed to establish a framework for these rights, later reflected in the Draft Council Framework Decision (COM/2004/0328 final) The Commission clarified that these proposals are intended to enhance compliance with existing standards in the European Convention on Human Rights (ECHR) rather than duplicating them This focus on procedural rights was reiterated in the 2007 outline during the German Presidency.
The European Commission emphasizes the fundamental importance of the right to legal advice and assistance, stating that it should be prioritized Without legal representation, accused individuals are often unaware of their rights, which can hinder the acceptance and protection of those rights The Commission views this right as the cornerstone of all other rights, highlighting its critical role in ensuring justice.
75 Ed Cape, Zaza Namoradze, Roger Smith, Taru Sponken, supra note 64, p 14
77 The birth of the Treaty of Lisbon, Treaty on European Union (TEU) and Treaty on functioning of the European Union (TTEU)
78 This content was also recorded at Art 52 of the Charter of Fundamental Rights of European Union
If the EU and its organizations become accountable to the European Court of Human Rights (ECtHR) regarding matters governed by the European Convention on Human Rights (ECHR), it will underscore the importance of the right to an effective defense European scholars emphasize that this right encompasses three key levels: firstly, the accused must have timely and comprehensive support from defense counsel, ensuring that all necessary conditions for exercising their rights are met.
The right to defense counsel is essential and should be clearly established in statutory documents and implemented in practice Additionally, enhancing the knowledge and professionalism of defense counsel is crucial This emphasis on effective defense is rooted in the respect for human rights, ensuring that the accused is central to the criminal justice process.