The Rights of the Defence According to the ECtHR
| Date | 01 December 2016 |
| DOI | 10.1177/203228441600700403 |
| Author | Vânia Costa Ramos |
| Published date | 01 December 2016 |
| Subject Matter | Analysis and Opinions |
New Journal of Eu ropean Crimina l Law, Vol. 7, Issue 4, 2016 397
THE RIGHTS OF THE DEFENCE
ACCORDING TO THE ECtHR
An Illustration in the Light of A.T. v. Luxembourg
and the Right to Legal Assistance*
V C R**
1. INTRODUCTION
e rights of the defence are a concretion of the fair tr ial principle established in
Article6 §1 ECHR and they must be understoo d as a consequence of the presumption
of innocence declared in A rticle6 §2, which is in turn al so a corollary of the fair tr ial
principle. Consequently the interpretat ion of the Article 6 §3 rights of the accused
must always be in conformit y with the general fair tria l principle.1
e rights of t he accused explicitly included in Art icle6 §3 are:
– right to information on the natu re and cause of the accusation in a lang uage which
the accused understa nds (6 §3 (a));
– right to have adequate time and facilities for the preparation of the defence (6 §3
(b));
– right to defend oneself in person (6 §3 (c))
– right to legal assistance (6 §3 (c))
– right to legal aid (6 §3 (c))
* is text corresp onds to updated notes for an oral pre sentation at a conference on EU Cri minal law
for Defence Council , Riga, 29–30 May 2015 and does not contai n exhaustive biblio graphical
citat ions, or a n exha ustive analy sis of t he case l aw. For com ments or qu estion s on thi s contr ibution,
please e-mail t he author at vaniacosta ramos@carlospintode abreu.com.
** Crimina l defence lawyer. PhD cand idate at the University of Lisbon S chool of Law.
1 For example, the r ight to legal assist ance in Article6 (3) (c) ECHR has been ex plicitly considered to
be “one element, amongst other s, of the concept of a fair tr ial in crimin al proceedings conta ined in
Article 6 §1” – cf. Imbrioscia v. Switzerland, Chamber judgment of 24.11.1993, application no.
13972/88, §37. Schabas, Wil liam A., e European C onvention on Human Rights, a C ommentary,
2015, comment to Article 6, p.307, refers that the C ourt usual ly examines fa irness of crimi nal
proceedings appl ying Article 6 §§1 and 3 altogether, treating the re quirements of Art icle §3 as
particu lar aspects of the r ight to a fair tria l guaranteed by §1.
Vânia Costa Ra mos
398 Intersentia
– right to examine or have examined prosecution witnesses a nd to obtain the
attendance and exam ination of witnesses on one’s behalf under the sa me
conditions as prosecution witnesses (6 §3 (d));
– right to have the free assista nce of an interpreter if one cannot understand or
speak the lang uage used in court (6 §3 (e))
In addition to these, the ECt HR has also recognised as implicitly included in the
ECHR at least the following ri ghts:
– right against self-incrim ination and to remain silent (6 §1)
– right to “fair use” of ev idence (6 §1)2
– right to access to the case le (Article6 §3 (b))
– right to consult one’s lawyer (Article6 §3 (b) and (c))
– right to a reasoned decision (Article6 §1)
e rights in Art icle6 §3 are conferred, not only on the accused person, but also on
the defence lawyer, since the e ectiveness of the legal assistance depends on the
exercise of such rights.3
is paper i s restricted to the right to legal assist ance. is right was chosen since
it is the gateway to the i nformation on and to the exercise of other defence rights and
is therefore of paramount signi cance.
2. THE SCOPE OF APPLICATION OF THE RIGHTS
A rst step to determine whether the ECHR applies in a given criminal case is to
determine whether there is a “criminal charge” in the sense of the ECtHR case law.
Both concepts have an autonomous meaning for pur poses of the ECHR, aiming at
giving those notions a subst antive rather than a merely formal content.
e concept of “charge” “depends on the circu mstances of the case, a s the
prominent place held in a democratic society by the right to a fair trial prompts the
Court to prefer a “substantive”, rather than a “forma l”, conception of the “charge”
contemplated by Article6 §1. e Court is compel led to look behind the appearances
and investigate the rea lities of the procedure in question” (Shabelnik v Ukraine, Fi h
Section judgment of 19.02.2009, application no. 16404/03, §52, citing Deweer v.
Belgium, Chamber Judgment of 27.02.1980, §44).
2 e expression. Belongs to Ölçer, F. Pınar, e European Court of Huma n Rights: e Fair Trial
Analysis Under A rticle6 of the Europea n Convention of Human Rights , in: Stephen aman (ed.),
Exclusionary Ru les in Comparative Law, 2013, pp. 371ss.
3 Ofner v. Austr ia, Decision on Adm issibility of 19.12.1960, applic ation no. 524/59, apud Barreto,
Ireneu Cabral, C onvenção Europeia dos Direitos do Homem – anot ada, 4.ª Ed., 2010, comment to
art.6.
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