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The right to a defence in the case law of the ECtHR (European Court of Human Rights<\/span>)<\/p>\n Two main forms of defence are guaranteed in criminal proceedings: accused persons and defendants may defend themselves in person or through a lawyer. In the latter case they may retain counsel, have counsel appointed under certain conditions, or be represented by both retained and appointed counsel.<\/p>\n The United Nations Human Rights Committee expressly stresses that these two forms of defence are not mutually exclusive.<\/p>\n The European Court of Human Rights appears to have taken a more restrictive approach to self-representation than the UN Human Rights Committee. The difference is particularly apparent in Correia de Matos v. Portugal, which was considered by both bodies. The applicant, a qualified auditor and lawyer, was refused permission to defend himself against a charge of insulting a judge. Against his wishes, the trial court appointed a lawyer whom he did not trust. The ECtHR declared the application manifestly ill-founded and therefore inadmissible. It considered that the decision whether to allow defendants, even those who are lawyers, to represent themselves or to be represented by counsel falls within the discretion of the member states, which are best placed to assess what the interests of justice require.<\/p>\n The case then went before the Human Rights Committee. Unlike the ECtHR, the Committee found in Mr de Matos\u2019s favour. It considered it unacceptable and potentially detrimental to the defendant\u2019s interests to appoint a lawyer whom he did not trust. While counsel may in some cases be appointed against a defendant\u2019s wishes, a restriction on the right to defend oneself in person must serve an objective and sufficiently serious purpose. The Committee found no such justification in this case. Among other things, it took into account the relatively minor nature of the offence and the defendant\u2019s qualifications.<\/p>\n Despite the difference between the two bodies\u2019 standards, the Committee does not rule out appointing counsel in criminal proceedings against the wishes of the accused or defendant. In several cases, for example, the International Criminal Tribunal for the former Yugoslavia appointed counsel for defendants who insisted on representing themselves. The interests of justice required this because of a defendant\u2019s poor health or persistent obstruction of the orderly and expeditious conduct of the trial.<\/p>\n The right to defend oneself in person is inseparable from the right to participate at every stage of the proceedings. As a general principle, the ECtHR recognises that a person charged with a criminal offence is entitled to take part in the hearing. Even in their early decisions, however, the Convention bodies accepted limits on personal participation and defence, for example where a defendant seriously disrupts proceedings, appears in court intoxicated or behaves aggressively towards others. In such cases the Strasbourg case law allows the defendant to be removed and the hearing to continue in their absence.<\/p>\n Trials in absentia are another permissible restriction on self-representation. Both the ECtHR and the Committee have recognised that they may serve the interests of justice, including the need in domestic criminal proceedings to observe limitation periods and prevent the loss of evidence. Such trials are subject to conditions that may be summarised as follows:<\/p>\n Proceedings in a defendant\u2019s absence may, in certain circumstances, be compatible with the proper administration of justice where, despite sufficiently early notice, the defendant declines to exercise the right to attend. This requires the authorities to take the necessary steps to summon defendants in good time and to inform them in advance of the date and place of the trial and of the requirement to attend.
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