Akademia Nauk Stosowanych
im. Alcide De Gasperi
BOOK CHAPTER (127-140)
The right to legal assistance in criminal proceedings: the European Court’s approach and practical challenges
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University of Warmia and Mazury in Olsztyn, Poland Faculty of Law and Administration Department of Criminalistics and Forensic Medicine
The right to fair trial is one of the most litigated human rights enshrined in the European Convention. The right to legal assistance is an important element of the fair trial. It is recognized, that when it comes to criminal proceedings, the support of a qualified lawyer is imperative to ensure the fairness of the trial and the effective enjoyment of procedural rights by a person suspected or accused of committing a crime. The European Court repeatedly pointed out that without any real access to legal counsel suspects and accused are extremely susceptible to being coerced into giving confessions and into waiving their rights without understanding the consequences. The article focused on the relevant European Court’s case law and highlighted practical challenges associated with the implementation of this right in criminal proceeding, in particularly the issue of the effectiveness of legal assistance. It has always been the position of the Court that the state is not accountable for the actions of an officially appointed lawyer. In Court’s opinion, the conduct of the defense is essentially a matter between the defendant and his counsel. Active state intervention is seen rather as an exception tolerated only in special circumstances. Nevertheless, without diminishing the importance of the independence of lawyers, it should not be seen as more valuable than providing qualified and practical legal assistance to a person suspected or accused of a crime. The effective legal assistance in the pre-trial stage, especially in the critical ones, should be considered as an integral part of the fair trial. When assessing whether adequate legal assistance was provided in specific case, the formal approach is inadmissible. The effectiveness of legal assistance should not be presume by the mere fact, that a person suspected or accused was “equipped” with a counsel whether retained or appointed. The question of the quality of legal assistance should not be seen predominantly as an internal matter of the lawyer’s professional association. There should be independent supervision specific to redress ineffective assistance by the counsel.
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