CASE OF CORREIA DE MATOS v. PORTUGAL

1. The case originated in an application (no. 56402/12) against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Portuguese national, Mr Carlos Correia de Matos (“the applicant”), on 4 August 2012.
2. The applicant was granted leave by a decision of the President of the Grand Chamber of 14 November 2016 to present his own case (Rules 71 § 1 and 36 §§ 2 and 3 of the Rules of Court). The Portuguese Government (“the Government”) were represented by their Agent, Ms M.F. da Graça Carvalho, Deputy Attorney-General.
3. The applicant alleged that the decisions of the domestic courts refusing him leave to conduct his own defence in the criminal proceedings against him and requiring that he be represented by a lawyer had violated Article 6 § 3 (c) of the Convention.
4. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). On 18 September 2014 the Government were given notice of the application. It was subsequently allocated to the Fourth Section. On 13 September 2016 a Chamber of that Section, composed of András Sajó, President, Vincent A. De Gaetano, Paulo Pinto de Albuquerque, Krzysztof Wojtyczek, Iulia Motoc, Gabriele Kucsko ‑ Stadlmayer and Marko Bošnjak, judges, and Marialena Tsirli, Section Registrar, decided to relinquish jurisdiction in favour of the Grand Chamber, none of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72).
5. The composition of the Grand Chamber was determined in accordance with the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 1 of the Convention).
6. The applicant and the Government each filed a memorial on the admissibility and merits.
7. A hearing took place in public in the Human Rights Building, Strasbourg, on 8 February 2017 (Rules 71 and 59 § 3).
There appeared before the Court:
(a) for the GovernmentMs M.F. da Graça Carvalho, Deputy Attorney-General, Agent, Mr L.E. Pereira de Azevedo, Public Prosecutor, Adviser;
(b) for the applicantMr C. Correia de Matos, Applicant.
The Court heard addresses by Ms da Graça Carvalho and Mr Correia de Matos and their replies to questions put by the judges.
I. THE CIRCUMSTANCES OF THE CASE
8. The applicant was born in 1944 and lives in Viana do Castelo (Portugal).
9. The applicant is a lawyer by training and an auditor by profession. From 1993 onwards, he was no longer authorised to practise as a lawyer. By a decision of the Bar Council of 24 September 1993, the applicant was suspended from the roll, as the exercise of the profession of lawyer was considered to be incompatible with his practising as an auditor. This decision was published in the Official Gazette in June 2000. When the applicant ceased his activity as an auditor in April 2016, he continued to be suspended from the Bar Council ’ s roll until at least the end of 2016 as the result of a disciplinary sanction imposed on him for having practised as a lawyer while not being authorised to do so.
10. On 28 February 2008, in the context of a set of civil proceedings in which he was nevertheless acting as a lawyer, the applicant criticised the decisions taken by the judge hearing the case, saying that they were not worthy of a judge and that a judge could not lie or omit the truth in the exercise of his functions. The judge in question filed a complaint for insult with the public prosecutor ’ s office. It is not clear from the material before the Court on what basis the applicant was acting as a lawyer in the context of those proceedings given the suspension from the roll referred to above.
1. The investigation proceedings
11. On 10 February 2010 the public prosecutor ’ s office at the Baixo ‑ Vouga District Court filed the prosecution ’ s submissions against the applicant on a charge of insulting a judge. As the applicant had not instructed a lawyer, the public prosecutor ’ s office appointed counsel on the basis of Article 64 of the Code of Criminal Procedure ( CCP ) to conduct the applicant ’ s defence.
12. On 12 March 2010 the applicant lodged a request with the Baixo ‑ Vouga Criminal Investigation Court for the opening of adversarial investigation proceedings ( abertura de instrução; see paragraph 39 below). He also sought leave to replace his officially appointed defence counsel and represent himself.
13. In an order of 7 September 2010 the court agreed to open the investigation but dismissed the request for officially appointed defence counsel to be replaced and for the applicant to conduct his own defence. It held that the applicant was not entitled to act in the proceedings without the assistance of defence counsel. The court held that under the provisions of Portuguese law, in particular Article 32 of the Constitution and Articles 64 § 3 and 287 § 4 of the CCP (see paragraphs 28, 33 and 40 below), the defendant had the right to be represented by independent counsel, a right which would not be made effective if self-representation were to be allowed. Referring to the Constitutional Court ’ s case-law on the subject, the court found that a defendant who was a lawyer could therefore not act in proceedings as his own counsel.
14. The applicant lodged an appeal with the Coimbra Court of Appeal against the order of 7 September 2010, challenging the decision not to allow him to represent himself in the criminal proceedings.
15. On 21 December 2010 the Coimbra Court of Appeal dismissed the applicant ’ s appeal. It considered the appeal to be admissible despite the fact that it had been lodged by the applicant in person, as it concerned the very issue whether the applicant, as the defendant, was entitled to conduct his own defence. The Court of Appeal stressed that Portuguese law on criminal procedure did not allow the procedural status of defendant to be combined with that of defence counsel in the same proceedings. It required that the defendant be assisted by defence counsel at the hearing before the investigating judge and at the trial in all cases where the proceedings concerned could give rise to a custodial sentence or a public-safety detention order. This reflected the premise that the accused would be better defended when the defence was conducted by a legal professional trained in advocacy. The latter, unencumbered by the emotional burden weighing on a defendant, could provide a lucid, dispassionate and effective defence. The law on criminal procedure was thus intended not to place limits on the defence ’ s action, but to support the proper defence of the accused.
16. On 11 May 2012 the Constitutional Court decided that it was not necessary to adjudicate on the constitutional appeal lodged by the applicant in person, in which he had complained about the lower courts ’ refusal to grant him leave to represent himself. The Constitutional Court found that the appeal had been neither signed nor endorsed by court-appointed defence counsel. The latter had not replied to the Constitutional Court ’ s query of 11 April 2012 as to whether she endorsed the constitutional appeal signed by the applicant himself.
17. On 20 September 2012 the Baixo-Vouga investigating judge held a hearing ( debate instrutório ), of which the applicant had been notified in person. The judge had previously refused to adjourn the hearing at the applicant ’ s request, finding that the Court of Appeal had already given a final ruling on the applicant ’ s application to represent himself. The applicant failed to attend the hearing, at which his court-appointed counsel was present. The investigating judge confirmed the charge against the applicant and referred the case for trial ( despacho de pronúncia ) before the Baixo-Vouga Criminal Court.
18. On 12 December 2013 the Baixo-Vouga Criminal Court, following a hearing which the applicant again did not attend but at which his court ‑ appointed defence lawyer was present, found the applicant guilty of aggravated insult (see paragraph 50 below) and ordered him to pay 140 day ‑ fines of nine euros (EUR) each as well as the costs of the proceedings.
19. The applicant, who at no point requested legal aid to cover the cost of his trial, court-appointed counsel or counsel of his own choosing, was ordered, in particular, to pay costs amounting to EUR 150 for his representation by court-appointed counsel. He did not pay these costs and the execution of the cost order was later discontinued for lack of assets which could be seized.
20. In an order dated 1 May 2014 the Baixo-Vouga Criminal Court rejected an appeal by the applicant against the judgment as inadmissible, on the ground that the appeal had not been signed by court-appointed defence counsel or by a lawyer instructed by the applicant. It confirmed that, as had previously been decided in a final decision, the applicant, as the defendant, did not have the right to represent himself in the proceedings.
21. By an order dated 18 November 2014 the Porto Court of Appeal, acting through its President, dismissed a complaint lodged by the applicant in person against the order of the Baixo-Vouga Criminal Court.
22. The Court of Appeal reiterated that, according to Portuguese law and well-established case-law, defendants in criminal proceedings, even if they were themselves lawyers, could not represent themselves but had to be assisted by defence counsel. It stressed that, as had also been argued by the General Council of the Bar Association in Opinion No. E-21/97 (see paragraphs 59-60 below), the provision of a criminal defence constituted a public-order interest. Therefore, the right to a defence could not be waived, even if this meant imposing a defence lawyer on the accused. Moreover, in adversarial proceedings the powers vested by law in the defence were incompatible in many situations with the position of the defendant. This was also clearly the case at the trial, taking into account, for example, the places to be occupied in the courtroom, the wearing of a gown and the cross-examination of witnesses.
23. The Court of Appeal noted that the Constitutional Court had repeatedly confirmed, in particular in judgments nos. 578/2001 and 196/2007 (see paragraphs 52-55 below), that this interpretation and the corresponding legislation – including Article 64 § 1 (d) of the CCP, which stipulates that only defence counsel can lodge appeals (see paragraph 33 below) – was in keeping with the Constitution. Likewise, this approach was not in breach of the International Covenant on Civil and Political Rights ( ICCPR ) or of the Convention. In Portugal, the accused had an array of procedural rights which went beyond the minimum standards guaranteed by these international instruments.
24. The Court of Appeal explained that Portuguese law on criminal procedure granted accused persons ample opportunity to defend themselves in person. The defendant had a very comprehensive right to intervene in person at any time in the proceedings in order to make requests, offer points of clarification, reply, explain or submit statements (see, in particular, Articles 61 § 1 (b), 98 § 1, 272 § 1, 292 § 2, 332, 341(a) and 343 §§ 1 and 2 of the CCP; paragraphs 30, 42 and 44 below). He also had the right to be the last person to address the court, immediately following the pleadings and before delivery of the judgment (see Article 361 § 1 of the CCP, paragraph 45 below). There was a distinction between, and a dual safeguard emanating from, the mandatory instruction of a lawyer to ensure the accused ’ s “technical” defence and the possibility for the accused to be present and to intervene in the proceedings.
25. Lastly, the Court of Appeal noted that, having no valid reasons to depart from an interpretation rooted in case-law and legal literature, Portugal had not amended its law in this regard either before or after the Views adopted in 2006 by the United Nations Human Rights Committee (see paragraphs 63 et seq. below).
26. As the applicant had not appointed counsel following his application to have the order of 18 November 2014 quashed, the Baixo-Vouga Criminal Court ’ s judgment of 12 December 2013 became final on 6 January 2015.
27. According to the material before the Court, the applicant did not call into question the qualifications or quality of the court-appointed lawyer at any stage in the proceedings before the domestic courts.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Provisions on defence in criminal proceedings
28. Article 32 of the Constitution of the Portuguese Republic, entitled “Safeguards in criminal proceedings”, in so far as relevant, provides :
“1. Criminal proceedings shall provide all the necessary safeguards of the defence, including the right to appeal. ...
3. The defendant shall have the right to choose counsel and to be assisted by him in relation to every procedural act. The law shall specify those cases and stages of the proceedings in which the assistance of a lawyer is mandatory. ...”
2. The Code of Criminal Procedure
(a) General provisions on defendants and defence counsel
29. Articles 57 et seq. of the Code of Criminal Procedure ( CCP ) lay down provisions regarding defendants and their defence counsel. The relevant provisions, in the version in force at the relevant time, are set out below.
30. Article 61 of the CCP on procedural rights and duties provides:
“1. Unless otherwise provided for by law, the defendant shall, at all stages of the proceedings, have the right to:
(a) be present for all procedural acts that directly affect him;
(b) be heard by the court or by the investigating judge whenever these render a decision that personally affects him;
(c) be informed of the charges against him prior to making any statements before an authority;
(d) refuse to answer any questions put by an authority concerning the charges against him and the substance of his statements in that regard;
(e) choose a lawyer or ask the court to appoint defence counsel to represent him;
(f) be assisted by defence counsel in all procedural acts in which he takes part ...;
(g) take part in the investigation and examination of the case, adduce evidence and request any necessary measures;
(h) be informed of his rights by the judicial authority or police body before which he is required to appear;
( i ) appeal, under the law, against any decisions to his detriment. ...”
31. Article 62 of the CCP on defence counsel reads as follows:
“1. The defendant may instruct counsel at any stage of the proceedings. ...”
32. Article 63 of the CCP on the rights of defence counsel provides:
“1. Defence counsel shall exercise the defendant ’ s statutory rights, save those reserved for the defendant himself.
2. The defendant may revoke any measure carried out on his behalf by defence counsel, provided that he does so by means of an explicit statement before any decision has been taken in respect of the measure in question.”
33. Rules on compulsory assistance are laid down in Article 64 of the CCP which, prior to its amendment by Law no. 20/2013 of 21 February 2013, provided:
“1. Assistance by defence counsel shall be compulsory:
(a) during the questioning of a defendant who has been arrested or detained;
(b) during the hearing before the investigating judge ( debate instrutório ) and the court hearings, except in proceedings which cannot result in a custodial sentence or a preventive measure entailing detention ( medida de segurança de internamento );
(c) in any procedural acts other than the person ’ s formal declaration as a defendant, and in cases where the accused has any visual, hearing or speaking impairment or is illiterate, cannot understand Portuguese, is less than 21 years old, or where the issue of his exclusion from or diminished criminal responsibility has been raised;
(d) in the event of an ordinary or extraordinary appeal; ...
(f) where the trial takes place in the absence of the defendant;
(g) in the other cases determined by law.
2. In cases other than those referred to above, the court may appoint defence counsel for a defendant, at the court ’ s or the defendant ’ s request, where the specific circumstances of the case demonstrate that it is necessary or appropriate for the defendant to be assisted.
3. Subject to the provisions of the preceding paragraphs, if the defendant does not have a lawyer or officially appointed defence counsel, the appointment of counsel shall be compulsory from the point at which the person is formally charged. ...
4. In the cases provided for by paragraph 3 above, the defendant shall be informed, in the document setting out the charges, that, if found guilty, he must pay defence counsel ’ s fees except if he is granted legal aid, and that he may replace defence counsel by a lawyer of his own choosing.”
34. Since its amendment by Law no. 20/2013 of 21 February 2013, Article 64 § 1 of the CCP reads as follows:
“1. Assistance by defence counsel shall be compulsory:
(a) during the questioning of a defendant who has been arrested or detained;
(b) during questioning by a judicial authority;
(c) during the hearing before the investigating judge and the court hearings;
The further sub-paragraphs (d) to (h) of the amended Article 64 § 1 essentially reproduce the text of sub-paragraphs (c) to (g) in the previous version of Article 64 § 1.
35. As regards the evolution of the rules on compulsory assistance in Portuguese law, it is apparent from Article 22 § 1 of the CCP of 1929 (adopted by Legislative Decree no. 16489 of 15 February 1929) that there were already certain situations at that time in which assistance by a lawyer was compulsory. Following the adoption of the Portuguese Constitution in 1976, the CCP of 1987 (adopted by Legislative Decree no. 78/87 of 17 February 1987 further to Law no. 43/86 of 26 September 1986 authorising the Government to approve a new CCP ) established an adversarial criminal procedure and reinforced the legal position of the public prosecutor ’ s office, but also that of the accused, in order to ensure effective equality of arms and to avoid all measures which could prejudice the accused ’ s personal dignity (see point III.10 of the Preamble to the CCP of 1987 and point 3 of section 2 of Law no. 43/86). Article 64 § 1 of the CCP, as amended in 1987, provided for compulsory assistance by defence counsel notably during the first judicial questioning of the defendant and during the hearing before the investigating judge and the court hearings, except in proceedings which could not result in a custodial sentence or a preventive measure entailing detention. Assistance by counsel was also compulsory in appeal proceedings. Law no. 59/98 of 25 August 1998, as well as Law no. 48/2007 of 29 August 2007 and Law no. 20/2013 of 21 February 2013 maintained the requirement of mandatory assistance in criminal proceedings and extended it to other procedural acts (see paragraphs 33 and 34 above and 36 and 37 below). According to the information available to the Court when Article 64 of the CCP was examined in 2007, three different proposals were submitted to Parliament by the Government and other political groups. The Government proposal, which was ultimately approved by a majority, indicated that one of the goals of the reform was to extend compulsory representation by a lawyer.
36. Section 1(10) of the Lawyers Act (Law no. 49/2004) of 24 August 2004, which was applicable at the material time, further provided:
“Where the Code of Criminal Procedure requires the defendant to be assisted by defence counsel, that function shall be carried out by a lawyer under the terms of the law.”
37. The Portuguese courts interpret Law no. 49/2004 of 24 August 2004 to the effect that a defendant who is a registered lawyer may never represent himself in criminal proceedings and must be represented by another registered lawyer. They consider the practice of advocacy to be incompatible with any duties or activities – such as those which result from being a defendant in criminal proceedings – which might impair the independence and dignity of the profession (see, for instance, Supreme Court case no. 279/96, judgment of 1 July 2009).
38. Article 66 of the CCP on court-appointed defence counsel further provides:
“1. Where defence counsel is appointed by the court, the defendant shall be notified thereof if he was not present at the material time. ...
3. The court may replace court-appointed defence counsel at any time on an application by the defendant that contains a valid ground. ...
5. Court-appointed counsel shall perform his duties for remuneration, the amount and terms of which shall be decided by the court within the limits set by the scale fixed by the Ministry of Justice ... The payment shall be made, depending on the case, by the defendant, the party assisting the public prosecutor ( assistente ), the civil parties or the Ministry of Justice.”
39. Furthermore, the provisions relating to the investigation proceedings contain further general rules on defendants and counsel. The investigation stage ( instrução ) comprises the adversarial judicial supervision of the prosecution ’ s investigation by the investigating judge, as explained in Article 286 of the CCP :
“1. The investigation stage aims to ensure judicial scrutiny of a decision to prefer charges ( acusar ) or to discontinue an investigation ( arquivar ), with the aim of deciding whether or not to refer the case for trial.
2. The investigation stage is optional. ...”
40. Article 287 of the CCP lays down rules on the application for opening of the investigation stage. It provides in paragraph 4:
“In making the order opening the investigation stage, the investigating judge shall appoint defence counsel in cases where the defendant is not represented by a lawyer or court-appointed defence counsel.”
(b) Further relevant provisions concerning the conduct of criminal proceedings and the respective roles of the defendant and counsel therein
( i ) The defendant ’ s position
41. In criminal proceedings, the defendant may at any time address the court, file observations, statements and requests with a view to protecting his fundamental rights, and may be the last person to address the court prior to its deliberations (see Articles 61 § 1 (b), 98 § 1, 272 § 1, 292 § 2, 332, 341 (a), 343 §§ 1 and 2 and 361 § 1 of the CCP ). The relevant provisions, in so far as they have not been set forth above, provide as follows.
42. Article 98 § 1 of the CCP on observations, statements and requests provides:
“The defendant ... may file observations, statements and requests at every stage of the proceedings, even if these are not signed by counsel, provided that they are relevant to the subject-matter of the proceedings or are aimed at protecting his fundamental rights. These observations, statements and requests shall always be included in the case file.”
43. It is stressed in the domestic courts ’ case-law that the right under Article 98 § 1 of the CCP “is a practical expression of the constitutional right of petition enshrined in Article 52 of the Constitution” (see Supreme Court of Justice, no. 2300/08, judgment of 25 September 2008, Paragraph I ). However, it is not designed to allow the defendant to take the place of defence counsel. The defendant must be assisted by defence counsel during all the procedural acts in which he participates, and especially those which require legal rigour (see Supreme Court of Justice, no. 2300/08, judgment cited above, which the Coimbra Court of Appeal followed, referring to previous case ‑ law, in its judgment of 3 June 2015 (no. 2320/12.2TALRA A.C1)).
44. As to the defendant ’ s right to address the court, Article 272 § 1 of the CCP provides that if an investigation is pending against a specific person in respect of whom there are reasons to suspect that he committed a criminal offence, that person must be questioned as a defendant. Under Article 292 § 2 of the CCP, the investigating judge must question the defendant as soon as he considers it necessary and each time the latter requests it. The presence of the defendant is required save in exceptional cases specified by law (Article 332 § 1 of the CCP ). The examination of the evidence at the trial starts with the defendant ’ s statements (Article 341 (a) of the CCP ). The presiding judge informs the defendant that he has the right to make statements at any time during the trial, provided that they are relevant to the object of the proceedings, and that he has the right to remain silent (Article 343 § 1 of the CCP ). If the defendant agrees to make statements, the court must hear his account in its entirety, subject to the provisions of the preceding paragraph (Article 343 § 2 of the CCP ).
45. After the oral pleadings of the public prosecutor ’ s office and defence counsel in particular, the presiding judge asks the defendant whether he wishes to make any other statements in his defence and listens to whatever he has to say in his favour (Article 361 § 1 of the CCP; for the interpretation of that provision by the domestic courts see paragraph 24 above).
(ii) Defence counsel ’ s position
46. As to the role of defence counsel, Article 302 §§ 2 and 4 of the CCP, on the conduct of the hearing before the investigating judge, provides that the judge gives the public prosecutor ’ s office, the lawyer of the prosecuting authority ’ s assistant ( assistente ) and defence counsel the opportunity to request the taking of additional evidence and to summarise their conclusions as to the sufficiency of the evidence gathered and the questions of law which arise.
47. Under the CCP, at the trial the statement as to which facts the defence intends to prove in the proceedings may be presented only by the defendant ’ s lawyer (and not by the defendant in person) (Article 339 § 2). Furthermore, only defence counsel may request that statements be made by the prosecuting authority ’ s assistant (Article 346 § 1) or by the victim (Article 347 § 1), and examine witnesses (Article 348) or suggest questions to be put to witnesses (Article 349) or to experts and technical advisers (Article 350 § 1).
48. Moreover, only defence counsel is given the floor by the presiding judge, following the taking of evidence and the pleadings of the public prosecutor ’ s office in particular, in order to address the court in oral pleadings setting forth the conclusions, in fact and in law, to be drawn from the evidence produced (Article 360 § 1 of the CCP ).
49. Almost all offences laid down in the Portuguese Criminal Code carry the possibility of a custodial sentence, either in combination with or as an alternative to a fine. In exceptional cases, minor offences may be punishable by a fine only (see, for instance, the offences of falsification of or using falsified sealed or stamped items under Article 268 §§ 3 and 4 of the Criminal Code, or the offence of simulation of an administrative offence under Article 366 § 2 of the Criminal Code).
50. Under Articles 181 § 1, 182 and 184, read in conjunction with Article 132 § 2 (l) of the Criminal Code, the offence of aggravated insult, proffered against a judge in the exercise of his functions, is punishable by a maximum term of imprisonment of four months and fifteen days or a maximum of 180 day-fines.
51. The granting of legal aid (see also paragraph 33 above) is governed by Law no. 34/2004 of 29 July 2004 (as amended by Law no. 47/2007 of 28 August 2007). Under section 8(1) of Law no. 34/2004, legal aid is granted to persons who lack the financial resources to meet the costs of the civil or criminal proceedings before a court in which they are involved. In accordance with section 16(1) of that Law, legal aid can take, inter alia, the following forms: (1) appointment of a legal representative and payment of his costs, (2) payment of the fees of defence counsel already appointed by a court, and/or (3) full or partial exemption from court fees and other procedural costs. In cases in which legal aid is granted in the form of the appointment of a legal representative, the Bar Association will be responsible for choosing and appointing a lawyer, in accordance with its statutes and rules (see sections 30(1) and 45 of Law no. 34/2004). The recipient of legal aid may, in any proceedings, request the Bar Association to replace the appointed legal representative, giving reasons for the request (section 32(1) of Law no. 34/2004).
1. The Constitutional Court ’ s case-law
(a) Case-law on mandatory representation in criminal proceedings
52. In judgment no. 578/2001 of 18 December 2001 the Constitutional Court held, by three votes to two, that the legislative choice to require accused persons to be represented by defence counsel in criminal proceedings, even if they were themselves lawyers duly registered with the relevant Bar Association, was not incompatible with the Constitution and in particular with Article 32 thereof (see paragraph 28 above).
53. The Constitutional Court found that the statutory provisions in question (see Articles 61, 62 and 64 of the CCP, referred to in paragraphs 30, 31 and 33 above), interpreted to the effect that they made it mandatory, in criminal proceedings, for a lawyer to be appointed for the defendant, had the advantage of guaranteeing that the latter ’ s interests were defended in a dispassionate manner. The court considered that the defendant would lack the disinterested and dispassionate approach necessary for the proper conduct of the proceedings even if, in his naturally subjective view, he felt that his defence was better secured if he conducted it in person in the capacity of “counsel for himself”. It further referred to the series of statutory procedural rights granted to the defendant, notably in Article 61 § 1 and Article 63 § 2 of the CCP (see paragraphs 30 and 32 above), the latter giving the defendant the power to invalidate procedural measures taken by defence counsel in his name.
54. Having regard to the case-law of the European Court of Human Rights and the legal literature, the Constitutional Court further found that Article 6 § 3 (c) of the Convention did not prevent States Parties from imposing, by law, an obligation for the defendant to be represented by a lawyer. It was for the States Parties to choose the defendant ’ s means of defence.
55. The Constitutional Court subsequently confirmed that case-law (see, inter alia, judgment no. 461/2004 of 23 June 2004, paragraph 5, and judgment no. 196/2007 of 14 March 2007, paragraph 3). In other decisions, the court further explained that the requirement to instruct a lawyer was based on compelling substantive reasons aimed not only at protecting public order, and in particular the interest in the implementation of justice and the law, but also at protecting the interests of the persons represented by counsel (see judgment no. 252/97 of 18 March 1997, paragraph 11). Representation by counsel in criminal proceedings was designed to ensure the participation of qualified professionals capable of ensuring the requisite technical preparations and observance of the ethical principles governing the profession (see judgment no. 461/2004, cited above, paragraph 5).
(b) Case-law on representation before the Constitutional Court
56. In judgment no. 599/2000 of 21 December 2000 the Constitutional Court declared admissible the constitutional appeal of an appellant who was not represented by a lawyer but was a lawyer himself. The court found that Articles 61, 62, 63 and 64 of the CPP were not applicable to constitutional appeals and that there was no other provision which could be invoked to argue that lawyers ( advogados ) could not intervene in person ( advogar em causa própria ) in constitutional appeal proceedings, in which representation by a lawyer was mandatory.
2. The Supreme Court ’ s case-law
57. According to the established case-law of the Supreme Court, a defendant in criminal proceedings cannot represent himself even if he is a lawyer or a judge. The Supreme Court considered that the statutory provisions authorising judges and lawyers to represent themselves before the courts were inapplicable in criminal cases (case no. 1501/97, judgment of 19 March 1998; case no. 3347/01, judgment of 6 December 2001; see also case no. 7/14.0TAVRS.S1, judgment of 20 November 2014, paragraph IV). It further found that the rules of domestic law allowed accused persons to prepare their defence together with defence counsel; they could also submit observations, statements and requests which did not raise questions of law (case no. 7/14, cited above, paragraph XI). The Supreme Court stressed in that context that the dispassionate conduct of a case was a necessary additional safeguard in criminal proceedings (see case no. 7/14.0YGLSB.S1, judgment of 12 June 2014, paragraph B.3). In the situations covered by Article 64 § 1 of the CCP, the legislature presumed that the accused ’ s personal defence was weakened, thus increasing the need for technical assistance, which the accused could not refuse (see case no. 3236/04, judgment of 7 April 2005, paragraph IV). In criminal proceedings the responsibilities of defence counsel were incompatible with the status of an accused (see, for instance, case no. 3347/01, judgment of 6 December 2001, paragraph I).
3. Case-law of the Courts of Appeal
58. Different Courts of Appeal have reiterated the reasons given by the Constitutional Court and the Supreme Court for requiring defendants to be represented by defence counsel in criminal proceedings even if they were themselves lawyers (see, for instance, Porto Court of Appeal, no. 0240116, judgment of 5 June 2002, and Guimarães Court of Appeal, no. 390/04-2, judgment of 3 May 2004, paragraphs IV-VI).
4. The Portuguese Bar Association ’ s view
59. The General Council of the Portuguese Bar Association, in Opinion No. E-21/97 of 4 May 1999 issued at a lawyer ’ s request, found that the acknowledged right of lawyers to plead on their own behalf in accordance with the provisions of the Statute of the Bar Association did not extend to criminal proceedings in which the lawyer was the defendant.
60. The General Council of the Bar Association argued that under the Portuguese Constitution criminal defence represented a public-order interest in the sense of a guarantee safeguarding the human dignity of all citizens including accused persons. The right to a defence could not, therefore, be waived and defence counsel could be imposed on defendants, exclusively in their interests. Moreover, in adversarial proceedings, the powers attributed by law to defence counsel could not, in many situations, be reconciled with the status of defendant. Under Portuguese law on criminal procedure a defendant in criminal proceedings, even if he was a lawyer, therefore had to be represented by a lawyer of his own choosing or by court-appointed defence counsel.
5. The domestic courts ’ practice concerning the authorisation of self ‑ representation
61. Notwithstanding its request to that effect, the Court has not been provided by the parties with any example of a case in which a Portuguese court, since the entry into force of the Code of Criminal Procedure in 1987, authorised a defendant in criminal proceedings before it to conduct his or her own defence; likewise, it has not learnt of any such example from other sources. It emerges from the Portuguese courts ’ judgments (see in particular the judgments cited in paragraph 57 above) that a number of requests of this nature were received and refused by the Portuguese criminal courts; the Court does not possess information on the exact number of requests of this nature refused by the domestic courts.
III. RELEVANT INTERNATIONAL LAW AND PRACTICE
A. The International Covenant on Civil and Political Rights
62. Article 14 § 3 of the ICCPR, in so far as relevant, reads as follows:
“In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: ...
(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it. ...”
B. Communication No. 1123/2002 submitted by the applicant to the United Nations Human Rights Committee ( HRC ) and General Comment No. 32 of the HRC
1. The Views adopted by the HRC
63. On 1 April 2002 the applicant submitted a communication (No. 1123/2002) concerning Portugal to the United Nations Human Rights Committee ( HRC ) under the Optional Protocol to the ICCPR. He complained that in a set of criminal proceedings in 1996 before the Ponte de Lima District Court for insulting a judge he had not been permitted to conduct his defence himself and had been assigned a lawyer to represent him against his will, in breach of Article 14 § 3 (d) of the ICCPR.
64. The communication was based on the same facts as those at issue in an application previously lodged by the applicant with this Court on 17 April 1999. In its decision of 15 November 2001 ( Correia de Matos v. Portugal ( dec. ), no. 48188/99, ECHR 2001 ‑ XII) a Chamber dismissed the application as manifestly ill-founded, finding that the applicant ’ s defence rights under Article 6 §§ 1 and 3 (c) of the Convention had not been breached (for further details see paragraphs 111-13 below).
65. In its Views adopted on 28 March 2006, the HRC found, by twelve votes to four, that the applicant ’ s right to defend himself in person under Article 14 § 3 (d) of the ICCPR had not been observed. It argued, in essence, that the clear wording of the said provision provided for a defence to be conducted in person “or” through legal assistance of one ’ s own choosing, taking as its point of departure the right to conduct one ’ s own defence. The right to conduct one ’ s own defence, which was a cornerstone of justice, could be undermined when a lawyer whom the accused did not trust was imposed against the wishes of the accused. The latter might then no longer be able to defend himself effectively as such counsel would not be his assistant (see paragraph 7.3 of the HRC ’ s Views).
66. In the HRC ’ s view, the right to defend oneself without a lawyer was not absolute. The interests of justice could require the assignment of a lawyer against the wishes of the accused, particularly in cases of a person substantially and persistently obstructing the proper conduct of the trial, or facing a grave charge but being unable to act in his own interests, or where it was necessary to protect vulnerable witnesses from further distress caused if the accused were to question them himself. However, any restriction on the accused ’ s wish to defend himself had to have an objective and sufficiently serious purpose and could not go beyond what was necessary to uphold the interests of justice (see paragraph 7.4 of the HRC ’ s Views). The assessment whether in a specific case the assignment of a lawyer was necessary in the interests of justice had to be made by the competent courts (see paragraph 7.5 of the HRC ’ s Views).
67. In the case before it, the HRC noted that under the Portuguese legislation and the case-law of the Supreme Court an accused could never be released from the requirement to be represented by counsel in criminal proceedings, even if he was a lawyer himself. It further observed that the law took no account of the seriousness of the charges or the behaviour of the accused. Moreover, Portugal had not provided any objective and sufficiently serious reasons to explain why, in the relatively simple case concerned, the absence of a court-appointed lawyer would have jeopardised the interests of justice (see paragraph 7.5 of the HRC ’ s Views). The HRC found that Portugal should amend its laws to ensure conformity with Article 14 § 3 (d) of the ICCPR (see paragraph 8 of the HRC ’ s Views). The majority of the HRC did not explicitly address the Court ’ s reasoning in its decision of 15 November 2001 concerning application no. 48188/99.
2. General Comment No. 32 of the HRC
68. The HRC reiterated its Views in respect of communication No. 1123/2002 in General Comment No. 32 entitled “Article 14 of the ICCPR : Right to equality before courts and tribunals and to a fair trial”, adopted at its 90th session (9 to 27 July 2007) (see document CCPR /C/GC/32, paragraph 37).
69. In that same General Comment, the HRC also stated, by reference to communication No. 450/1991, I.P. v. Finland (paragraph 6.2 of the decision on admissibility adopted on 26 July 1993), that the “right of equal access to a court, embodied in article 14, paragraph 1, concern [ ed ] access to first instance procedures and [did] not address the issue of the right to appeal or other remedies.”
3. Subsequent developments in Portugal
70. The Portuguese legislature has not amended the Portuguese legislation to date in order to provide for the possibility for defendants, in certain circumstances, to defend themselves in person, in accordance with the Views adopted by the HRC. In their fourth periodic report submitted under Article 40 of the ICCPR in January 2011, the Portuguese authorities referred to the “very awkward position regarding the fulfilment of [Portugal ’ s] international human rights obligations” caused by the differences between the case-law of this Court and the decision of the HRC in respect of the same case (see document CCPR /C/ PRT /4 of 25 February 2011, paragraphs 272 to 275).
71. The HRC, in its concluding observations on the said report adopted at its 106th session (15 October to 2 November 2012), considered that Portugal should implement the recommendation contained in its Views in respect of communication No. 1123/2002, make the current rule of obligatory representation by a lawyer less rigid and consider the compulsory provision of back-up counsel to advise defendants who defended themselves (see document CCPR /C/ PRT /CO/4 of 23 November 2012, paragraph 14).
72. The Portuguese Supreme Court, in its judgment of 20 November 2014 (cited above at paragraph 57), adopted in a different set of proceedings brought by the applicant in the present case, took note of the decision rendered by this Court in application no. 48188/99 and of the Views adopted by the HRC in communication No. 1123/2002 (see paragraphs 63 ‑ 67 above). It found that the implementation of the said Views by means of amendment of the domestic law, which prohibited self ‑ representation by defendants in criminal proceedings, would break with a legal tradition and cause innumerable and foreseeable disturbances. For that reason, the Portuguese legislation had not been changed to give effect to the HRC ’ s Views (see paragraphs VI-IX of the judgment).
C. Rules of international criminal tribunals
73. Article 67 § 1 (d) of the Statute of the International Criminal Court (ICC) and Article 21 § 4 (d) of the Statute of the International Criminal Tribunal for the Former Yugoslavia ( ICTY ) provide for the right of an accused to conduct his defence in person or through legal assistance of his own choosing. A number of accused before the ICTY in particular have availed themselves of the right, as interpreted by that court, to conduct their defence without the assistance of counsel. In 2008 the ICTY adopted Rule 45 ter of the Rules of Procedure and Evidence with a view to codifying its case-law. The relevant provision states that the Trial Chamber may, if it decides that it is in the interests of justice, instruct the Registrar to assign counsel to represent the interests of the accused.
D. Recommendation No. R( 2000)21
74. Recommendation No. R(2000)21 of the Committee of Ministers to member States on the freedom of exercise of the profession of lawyer, adopted by the Committee of Ministers on 25 October 2000 at the 727th meeting of the Ministers ’ Deputies, in so far as relevant, provides:
“The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe, ...
Desiring to promote the freedom of exercise of the profession of lawyer in order to strengthen the Rule of Law, in which lawyers take part, ...
Principle III – Role and duty of lawyers
1. Bar associations or other lawyers ’ professional associations should draw up professional standards and codes of conduct and should ensure that, in defending the legitimate rights and interests of their clients, lawyers have a duty to act independently, diligently and fairly. ...
4. Lawyers should respect the judiciary and carry out their duties towards the court in a manner consistent with domestic legal and other rules and professional standards. ...
... 4. Bar associations or other professional lawyers ’ associations should be encouraged to ensure the independence of lawyers and, inter alia, to: ...
b. defend the role of lawyers in society and, in particular, to maintain their honour, dignity and integrity; ...”
75. The Council of Bars and Law Societies of Europe (“the CCBE ”) has adopted two foundation texts: the Code of Conduct for European Lawyers, which dates back to 28 October 1988 and has undergone a number of amendments, and the Charter of Core Principles of the European Legal Profession, which was adopted on 24 November 2006. The Charter contains a list of ten core principles common to the national and international rules regulating the legal profession, amongst which the following principles are enumerated:
“... (d) the dignity and honour of the legal profession, and the integrity and good repute of the individual lawyer; ...
(h) respect towards professional colleagues;
( i ) respect for the rule of law and the fair administration of justice; and
(j) the self-regulation of the legal profession.”
IV. RELEVANT EUROPEAN UNION LAW
76. Article 47(2) of the Charter of Fundamental Rights of the European Union (EU) on the right to an effective remedy and to a fair trial provides:
“Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal ... Everyone shall have the possibility of being advised, defended and represented.”
According to the explanations referred to in Article 52(7) of the Charter, the second paragraph of Article 47 corresponds to Article 6 § 1 of the Convention. The explanations state that, in all respects other than their scope, the guarantees afforded by the Convention apply in a similar way to the Union.
77. Article 48(2) of the Charter of Fundamental Rights on the presumption of innocence and the rights of the defence provides:
“Respect for the rights of the defence of anyone who has been charged shall be guaranteed.”
According to the aforementioned explanations, Article 48 is the same as Article 6 §§ 2 and 3 of the Convention.
78. Article 52(3) of the Charter of Fundamental Rights on the scope and interpretation of rights and principles reads as follows:
“In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.”
79. Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty, which entered into force in November 2013 (see OJ 2013 L 294, pp. 1 to 12) and was to be transposed by the EU Member States by 27 November 2016, provides as follows in its 53rd recital:
“Member States should ensure that the provisions of this Directive, where they correspond to rights guaranteed by the ECHR, are implemented consistently with those of the ECHR and as developed by case-law of the European Court of Human Rights.”
80. The Directive further provides, in particular:
The right of access to a lawyer in criminal proceedings
“1. Member States shall ensure that suspects and accused persons have the right of access to a lawyer in such time and in such a manner so as to allow the persons concerned to exercise their rights of defence practically and effectively.
4. ... Notwithstanding provisions of national law concerning the mandatory presence of a lawyer, Member States shall make the necessary arrangements to ensure that suspects or accused persons who are deprived of liberty are in a position to exercise effectively their right of access to a lawyer, unless they have waived that right in accordance with Article 9.”
“1. Without prejudice to national law requiring the mandatory presence or assistance of a lawyer, Member States shall ensure that, in relation to any waiver of a right referred to in Articles 3 ...:
(a) the suspect or accused person has been provided, orally or in writing, with clear and sufficient information in simple and understandable language about the content of the right concerned and the possible consequences of waiving it; and
(b) the waiver is given voluntarily and unequivocally.
“Nothing in this Directive shall be construed as limiting or derogating from any of the rights and procedural safeguards that are ensured under the Charter, the ECHR, or other relevant provisions of international law or the law of any Member State which provides a higher level of protection.”
V. RELEVANT COMPARATIVE-LAW MATERIALS
81. According to the material before the Court, out of thirty-five Contracting Parties to the Convention other than Portugal, thirty-one (Austria, Albania, Armenia, Bosnia and Herzegovina, Bulgaria, Croatia, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Ireland, Latvia, Lithuania, Luxembourg, Malta, the Republic of Moldova, Monaco, Montenegro, the Netherlands, Poland, Romania, the Russian Federation, Slovakia, Slovenia, Sweden, Turkey, Ukraine and the United Kingdom) have established the right to conduct one ’ s own defence in criminal proceedings as a general rule, whereas four States (Italy, Norway, San Marino and Spain), as a general rule, prohibit self-representation. However, irrespective of whether these States allow or prohibit the conduct by defendants of their own defence as a general rule, almost all of them provide for a number of exceptions to the rule.
82. Twenty-nine out of the thirty-one Contracting Parties in which self ‑ representation is, as a general rule, allowed restrict self-representation to a greater or lesser extent on the basis of criteria relating to the particular circumstances of the case. Only Ireland and Poland do not provide for such exceptions and permit defendants to conduct their own defence if they so wish, regardless of any further factors. The criteria which are, alternatively or cumulatively, taken into account by domestic legislation and/or the domestic courts in the said twenty-nine member States for restricting the right to conduct one ’ s own defence include the level of jurisdiction concerned, the complexity of the case, the severity of the offence the defendant is charged with and the defendant ’ s capacity to conduct his own defence [ including factors such as his presence or absence at the trial and his willingness not to disturb its good order, the defendant ’ s age (under age/of age) and mental health, and his ability or otherwise to speak the language of the trial ]. Many of these States prescribe, in particular, mandatory legal assistance before the higher courts where legal arguments have to be presented and in cases in which the defendant is charged with a more serious offence that is punishable by imprisonment for a certain minimum period.
83. The four member States in which there is a general prohibition on self-representation also provide for exceptions dependent on, alternatively or cumulatively, the level of jurisdiction concerned, the complexity of the case, the severity of the offence the defendant is charged with and the defendant ’ s capacity to conduct his or her own defence. Italy and Spain, in particular, permit defendants to conduct their own defence in criminal proceedings concerning minor offences.
84. As regards the rules on self-representation for defendants in criminal proceedings who have legal training, twenty-nine out of the thirty-five member States surveyed (that is, all except Greece, Italy, Luxembourg, the Netherlands, Poland and Spain) make no specific provision for this group of persons. Out of the six Member States which have specific rules in this regard, five allow defendants who are lawyers entitled to plead before the courts greater freedom to conduct their own defence compared with those without legal training or those who belong to a different legal profession. Spain, for instance, which as a general rule prohibits defendants from conducting their own defence, permits lawyers to do so. Only in Luxembourg is the right to conduct one ’ s own defence more restricted for lawyers than for certain other defendants belonging to a different legal profession.
ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
85. The applicant complained of the decisions of the domestic courts refusing him leave to conduct his own defence in the criminal proceedings against him and requiring that he be represented by a lawyer. He relied on Article 6 § 3 (c) of the Convention. Article 6, in so far as relevant, reads as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
3. Everyone charged with a criminal offence has the following minimum rights:
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ...”
86. The Government contested that argument.
87. In the Government ’ s submission, the application was inadmissible as being manifestly ill-founded, as the applicant ’ s defence rights under Article 6 §§ 1 and 3 (c) of the Convention had not been breached. The applicant contested that view.
88. The Court, having regard to the material before it, finds that the present application raises an issue in respect of the observance by the respondent State of the applicant ’ s right to defend himself in person under Article 6 §§ 1 and 3 (c) of the Convention. It is therefore not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention.
89. The application is likewise not inadmissible on any other grounds. The Court reiterates in this context that the protection afforded by Article 6 §§ 1 and 3 applies to a person subject to a “criminal charge”, which exists, in particular, from the moment that an individual is officially notified by the competent authority of an allegation that he has committed a criminal offence (see Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08, 50571/08, 50573/08 and 40351/09, § 249, ECHR 2016, and Simeonovi v. Bulgaria [GC], no. 21980/04, §§ 110-11, ECHR 2017 (extracts), with further references ). Therefore, no issue arises in respect of the applicability of Article 6 in the present case in so far as the applicant complained of a breach of his defence rights including during the investigation proceedings.
90. The Court further observes that the Government did not raise any other plea of inadmissibility in accordance with Rules 54 and 55 of the Rules of Court. The application must therefore be declared admissible.
91. In the applicant ’ s view, the impugned decisions of the Portuguese courts prohibiting him from conducting his own defence without the assistance of a lawyer in the criminal proceedings against him violated Article 6 §§ 1 and 3 (c) of the Convention.
92. The applicant submitted that the said decisions failed to comply with Article 6 §§ 1 and 3 (c) in two respects. Firstly, they prevented him as a citizen from conducting his own defence. Secondly, they prevented him as a lawyer from appointing the lawyer of his own choosing in the proceedings, namely himself. He claimed in this context that his suspension from the Portuguese Bar since 1993 owing to the alleged incompatibility of his functions as a lawyer and as an auditor was null and void.
93. The applicant considered the Court ’ s case-law on self-representation, and in particular the decision in application no. 48188/99, previously brought by him before this Court (see Correia de Matos, cited above; see also paragraphs 111-13 below), to be incompatible with the text of Article 6 §§ 1 and 3 (c) of the Convention. The latter decision therefore had to be declared void. He argued that the appointment by the courts of defence counsel was intended to provide for legal assistance, but had developed into a broad power on the part of the courts to appoint a lawyer for the defendant, whereas this should be left to the defendant ’ s discretion.
94. According to the applicant, in the Portuguese legal system the right to legal assistance had been converted into an absolute obligation to be assisted by a lawyer, which negated the right to conduct one ’ s own defence. He stressed that Article 64 of the CCP (see paragraph 33 above) required persons charged with an offence to be represented by counsel at all stages of the proceedings including the investigation proceedings, without any reasons needing to be given for not permitting self-representation.
95. In view of the lack of provision of reasons under Portuguese law, there were neither relevant nor sufficient grounds, as required by this Court ’ s case-law, to exclude self-representation, the exclusion of which was not in the interests of all defendants. It could not be decided by law in a general and abstract manner whether, in a particular case, self ‑ representation or representation by counsel would result in a more effective defence. The Portuguese courts did not have any margin of appreciation in this regard. A lawyer-defendant had to be considered capable of properly assessing his own interests and of conducting his defence effectively. Even in a simple case, it was inexplicable why an advocate who was less experienced and less familiar with the case would be in a better position to conduct the defence effectively than a trained lawyer ‑ defendant who had prepared his defence over a long period.
96. As to the possibilities for defendants under Portuguese law to participate in the proceedings against them, the applicant submitted that, in theory, the defendant could intervene during the proceedings and submit statements or evidence and request procedural steps he or she deemed necessary (Articles 61 § 1 (g) and 98 § 1 of the CCP, see paragraphs 30 and 42-43 above). However, the domestic courts would not take any action in response to the defendant ’ s statements and requests unless counsel ratified the proceedings, as the defendant ’ s rights were exercised by defence counsel (Article 63 § 1 of the CCP, see paragraph 32 above). Moreover, defendants could not plead orally (Article 302 § 2 of the CCP, see paragraph 46 above), but could only add any further points in their defence following counsel ’ s pleadings (Article 361 § 1 of the CCP, see paragraph 45 above), when, according to the applicant, they were already virtually convicted, and could only proceed with an appeal with the assistance of defence counsel (Article 64 § 1 of the CCP ). Finally, under Article 64 of the CCP, it was for convicted defendants to pay the fees of officially appointed defence counsel unless they had been granted legal aid.
97. The applicant claimed that in the impugned criminal proceedings before the domestic courts, he had not had the opportunity to present his defence. He argued that a court-appointed lawyer from a small village, who was probably inexperienced and who had sought to be exempted from the appointment, had defended him against his express will, had failed to submit an essential document at the trial proving his innocence and had failed to sign and endorse his appeals. It had not been in the interests of justice for him to be defended by that lawyer, a situation which had prevented him from conducting his defence in the way he wished, and to be charged for the associated costs. He had therefore not communicated with his court-appointed counsel.
98. The Government took the view that the criminal proceedings against the applicant, in which he had been prohibited from conducting his own defence without the assistance of defence counsel, had complied with Article 6 §§ 1 and 3 (c) of the Convention.
99. In the Government ’ s submission, the Court had established the principles applicable to a case like the present one, in particular in its decision in the previous, similar application lodged by the applicant ( Correia de Matos, cited above) and in the case-law cited therein. There were no compelling reasons to amend these principles, which complied with the principle of subsidiarity. It was clear, having regard to the wording of Article 6 § 3 (c), which gave the accused the right “to defend himself in person or through legal assistance of his own choosing”, that the accused did not have an absolute right to conduct his or her own defence.
100. Under the Court ’ s well-established case-law in respect of Article 6 §§ 1 and 3 (c), it fell within the national authorities ’ margin of appreciation to define the manner in which criminal procedure should provide for the defence of the accused. It was for the domestic authorities to decide whether, having regard to the interests of justice, the defence in criminal proceedings could be conducted by the defendant in person, in particular where the latter was a lawyer, or whether a lawyer other than the defendant should be appointed.
101. In the Government ’ s view, the reasons why Portuguese law provided for compulsory representation by a lawyer at certain stages of the criminal proceedings were relevant and sufficient, as required by the Court ’ s case-law. They explained that under Article 64 § 1 of the CCP the assistance of defence counsel was not mandatory at all stages of the proceedings, but only for specific situations and procedural acts of particular importance for the outcome of the proceedings, notably if a deprivation of liberty was at stake, for certain procedural acts of a particularly technical nature such as appeals, or where the defendant was particularly vulnerable.
102. The requirement under the Code of Criminal Procedure for defendants to be legally represented by counsel in these circumstances reflected a long-standing domestic legal tradition which was very widely accepted in the legal literature, by the Bar, and in the case-law of the Portuguese courts including the Constitutional Court. It was aimed at securing the defendant ’ s fundamental right to an effective defence. It thus served an important public interest, the interest in the proper administration of justice and in ensuring a fair trial that safeguarded the principle of equality of arms as well as the interests of the accused. It contributed to the objective and dispassionate conduct of the proceedings, which the defendant himself was not in a good position to ensure. It further guaranteed respect for the dignity of the defendant in the proceedings and ensured that all elements which were favourable to the defendant ’ s legal position were brought before the court. Therefore, the defendant could not waive his or her right to legal assistance in the situations covered by Article 64 § 1 of the CCP. Portuguese law thus did not restrict the accused ’ s rights of defence; if anything, it protected those rights excessively, but this approach could not entail a breach of the right to a fair trial.
103. Moreover, the Government explained that specific circumstances relevant to the authorisation or prohibition of self-representation (such as the complexity of the case and the gravity of its implications for the defendant, the latter ’ s personality, vulnerability or special needs and the stage of the proceedings) had been taken into account by the legislature in determining, in a general and abstract manner, the circumstances in which self-representation was prohibited.
104. The Government further argued that under Portuguese law on criminal procedure, defence counsel was not only a representative of the defendant. Counsel was an autonomous organ of the administration of justice whose task was to conduct an effective technical defence of the accused. The status and role of counsel could not, therefore, be merged with that of the defendant, even if the latter was a lawyer by profession.
105. The technical defence reserved for counsel, which included, for instance, the cross-examination of witnesses or experts and the lodging of appeals, co-existed with the personal defence conducted by the defendant himself. Defendants had ample rights to intervene in person in the proceedings against them. They had the right to be present at all stages of the proceedings which affected them, to make statements or remain silent concerning the substance of the charge; they could submit observations, statements and requests which, without having to be signed by counsel, were added to the case file (Article 98 § 1 of the CCP ), could revoke any measure carried out on their behalf by counsel under the circumstances set out in Article 63 § 2 of the CCP, and were the last persons to address the court prior to the delivery of the judgment (Article 361 § 1 of the CCP ).
106. The Government also explained that the provisions of Portuguese law requiring a defendant in criminal proceedings to be assisted, at certain points in the procedure, by defence counsel, had not been amended following the Views adopted by the HRC on 28 March 2006 concerning communication No. 1123/2002 (see paragraphs 63 et seq. above). Being confronted with two contradictory decisions by two international supervisory bodies, they noted that only this Court had judicial powers and that its decisions had the force of res judicata. This Court, in its prior decision on the application brought by the same applicant concerning the same facts ( Correia de Matos, cited above; see paragraphs 111-13 below), had taken the view that the domestic legal approach was not in breach of the applicant ’ s defence rights.
107. As to the applicant ’ s defence in the criminal proceedings at issue, the fact that the applicant had not conducted his own defence had to be attributed to his choice not to be present at the key stages of the proceedings. Article 6 §§ 1 and 3 (c) did not require that defendants be allowed to conduct their own technical defence where, as under Portuguese law, they could present their personal defence alongside counsel.
108. Moreover, the applicant had refused in the proceedings before the Portuguese courts to be defended by counsel and had demonstrated thereby that he lacked the objective and dispassionate approach necessary to conduct his own defence.
(a) Preliminary remarks concerning the content and context of the applicant ’ s complaint
109. The Court observes at the outset that there are two aspects to the applicant ’ s complaint about the domestic courts ’ decision refusing him leave to conduct his own defence in the criminal proceedings against him and requiring that he be represented by defence counsel despite the fact that he was a trained lawyer himself. The applicant mainly complained that, despite his legal training, he had not been allowed to defend himself in person, for the purposes of the first alternative of Article 6 § 3 (c), without any legal assistance by counsel. He further claimed that he had not been able to defend himself through legal assistance of his own choosing, for the purposes of the second alternative of Article 6 § 3 (c), namely by choosing to act as his own counsel in the criminal proceedings against him.
110. The Court considers, in the light of the parties ’ arguments, that the thrust of the case before it concerns the scope of the right for defendants with legal training to defend themselves in person. It observes, however, that the applicant had been suspended from the Bar Council ’ s roll at the time of the impugned proceedings before the domestic courts and that he could not, therefore, have acted as counsel in his own case irrespective of the rules of Portuguese law on criminal procedure regarding mandatory representation (see paragraph 9 above).
111. Furthermore, as indicated in paragraph 64, the applicant had previously lodged an application with this Court following his conviction in 1998 in criminal proceedings before the Ponte de Lima District Court for insulting a judge. In that application, lodged in 1999, he also complained under Article 6 § 3 (c) that he had not been permitted to conduct his own defence and that he had been assigned a lawyer to represent him against his will.
112. In its decision of 15 November 2001 ( Correia de Matos v. Portugal ( dec. ), no. 48188/99, ECHR 2001-XII) a Chamber of this Court held as follows:
“... in this area it is essential for applicants to be in a position to present their defence appropriately in accordance with the requirements of a fair trial. However, the decision to allow an accused to defend himself or herself in person or to assign him or her a lawyer does still fall within the margin of appreciation of the Contracting States, which are better placed than the Court to choose the appropriate means by which to enable their judicial system to guarantee the rights of the defence.
It should be stressed that the reasons relied on for requiring compulsory representation by a lawyer for certain stages of the proceedings are, in the Court ’ s view, sufficient and relevant. It is, in particular, a measure in the interests of the accused designed to ensure the proper defence of his interests. The domestic courts are therefore entitled to consider that the interests of justice require the compulsory appointment of a lawyer.
The fact that the accused is himself also a lawyer, as is the case here – even if the applicant ’ s name has been temporarily removed from the Bar Council ’ s roll – does not in any way undermine the preceding observations. Although it is true that, as a general rule, lawyers can act in person before a court, the relevant courts are nonetheless entitled to consider that the interests of justice require the appointment of a representative to act for a lawyer charged with a criminal offence and who may therefore, for that very reason, not be in a position to assess the interests at stake properly or, accordingly, to conduct his own defence effectively. In the Court ’ s view, the issue again falls within the limits of the margin of appreciation afforded to the national authorities.
The Court considers that in the instant case the applicant ’ s defence was conducted appropriately. It points out in that connection that the applicant did not allege that he had been unable to submit his own version of the facts to the courts in question and that he was represented by an officially assigned lawyer at the hearing of 15 December 1998.”
113. The Chamber therefore dismissed the application as manifestly ill ‑ founded, finding that the applicant ’ s defence rights under Article 6 §§ 1 and 3 (c) of the Convention had not been breached.
114. The same facts formed the basis for the communication concerning Portugal subsequently submitted to the HRC and detailed in paragraphs 63 ‑ 67 above.
( i ) Nature and scope of the Court ’ s assessment
115. The Court reiterates at the outset that the Convention does not provide for the institution of an actio popularis. Under the Court ’ s well ‑ established case-law, in proceedings originating in an individual application under Article 34 of the Convention, its task is not to review domestic law in abstracto. Instead, it must determine whether the manner in which it was applied to, or affected, the applicant gave rise to a violation of the Convention (see, variously, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 101, ECHR 2014; Perinçek v. Switzerland [GC], no. 27510/08, § 136, ECHR 2015 (extracts); and Roman Zakharov v. Russia [GC], no. 47143/06, § 164, ECHR 2015, and the authorities cited therein).
116. The Court next draws attention to the fundamentally subsidiary role of the Convention system. The Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in the Convention and the Protocols thereto, and in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the Court. The national authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions (see, among other authorities, Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 97, ECHR 2003 ‑ VIII; Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, § 98, 25 October 2012; and Garib v. the Netherlands [GC], no. 43494/09, § 137, 6 November 2017).
117. Where the legislature enjoys a margin of appreciation, the latter in principle extends both to its decision to intervene in a given subject area and, once having intervened, to the detailed rules it lays down in order to ensure that the legislation is Convention compliant and achieve a balance between any competing public and private interests. However, this does not mean that the choices made and solutions reached by the legislature are beyond the scrutiny of the Court. It falls to the Court to examine carefully the arguments taken into consideration during the legislative process and leading to the choices that have been made by the legislature and to determine whether a fair balance has been struck between the competing interests of the State or the public generally and those directly affected by those legislative choices (see, mutatis mutandis, S.H. and Others v. Austria [GC], no. 57813/00, § 97, ECHR 2011; Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 108, ECHR 2013 (extracts); and Garib, cited above, § 138).
118. When examining the applicant ’ s complaint about the refusal of the domestic courts pursuant to domestic law to grant him leave to conduct his own defence in the criminal proceedings against him, the Court will thus have regard to its well-established case-law on the scope of the right to defend oneself pursuant to Article 6 of the Convention and to the margin of appreciation the Convention has traditionally afforded member States in that regard. It will also examine the legislative framework in Portuguese law requiring mandatory representation of defendants in almost all criminal proceedings and the specific application of that legislation in the present case, by the domestic courts, in the light of the requirement to ensure the fairness of the proceedings as a whole.
(ii) The scope of the right to defend oneself in person
119. According to the Court ’ s well-established case-law, the guarantees contained in paragraph 3 of Article 6 are specific aspects of the general concept of a fair trial set forth in paragraph 1. The various rights, of which a non-exhaustive list appears in paragraph 3, reflect certain of the aspects of the notion of a fair trial in criminal proceedings. When compliance with paragraph 3 is being reviewed, its basic purpose must not be forgotten nor must it be severed from its roots. The Court therefore considers complaints under Article 6 § 3 under paragraphs 1 and 3 of Article 6 taken together (see, inter alia, Meftah and Others v. France [GC], nos. 32911/96 and 2 others, § 40, ECHR 2002 ‑ VII, with further references ).
120. The minimum rights listed in Article 6 § 3, which exemplify the requirements of a fair trial in respect of typical procedural situations which arise in criminal cases, are not aims in themselves: their intrinsic aim is always to contribute to ensuring the fairness of the criminal proceedings as a whole (see Ibrahim and Others, cited above, § 251 with further references).
121. Article 6 § 3 (c) confers on a person charged with a criminal offence the right “to defend himself in person or through legal assistance of his own choosing”. Notwithstanding the importance of the relationship of confidence between a lawyer and his client, the latter right is not absolute. The Court has held that it is necessarily subject to certain limitations where free legal aid is concerned and also where it is for the courts to decide whether the interests of justice require that the accused be defended by counsel appointed by them (see Dvorski v. Croatia [GC], no. 25703/11, § 79, ECHR 2015 and the authorities cited therein).
122. According to the long-established case-law of both the Commission and the Court, Article 6 §§ 1 and 3 (c) thus guarantees that proceedings against the accused will not take place without adequate representation for the defence, but it does not necessarily give the accused the right to decide himself in what manner his defence should be assured (see Correia de Matos, cited above; Mayzit v. Russia, no. 63378/00, § 65, 20 January 2005; and Breukhoven v. the Czech Republic, no. 44438/06, § 60, 21 July 2011). The decision as to which of the two alternatives mentioned in the provision should be chosen, namely the applicant ’ s right to defend himself in person or to be represented by a lawyer of his own choosing, or in certain circumstances one appointed by the court, depends upon the applicable legislation or rules of court (see X. v. Norway, no. 5923/72, Commission decision of 30 May 1975, Decisions and Reports (DR) 3, p. 44; Thorgeirson v. Iceland, no. 13778/88, Commission decision of 14 March 1990; Correia de Matos, cited above; Mayzit, cited above, § 65; Sakhnovskiy v. Russia [GC], no. 21272/03, § 95, 2 November 2010; and Breukhoven, cited above, § 60).
123. The decision whether to allow an accused to defend himself or herself in person without the assistance of a lawyer or instead to assign a lawyer to represent him or her falls within the margin of appreciation of the Contracting States, which are better placed than the Court to choose the appropriate means by which to enable their judicial system to guarantee the rights of the defence (see, inter alia, Weber v. Switzerland, no. 24501/94, Commission decision of 17 May 1995; Correia de Matos, cited above, with further references; and, as a more recent example, X v. Finland, no. 34806/04, § 182, ECHR 2012 (extracts)).
124. Furthermore, the Court ’ s case-law has recognised that requiring compulsory representation by a registered lawyer is a measure taken in the interests of the accused, and is designed to ensure the proper defence of his or her interests in the criminal proceedings. The Court has held that the domestic courts are therefore entitled to consider that the interests of justice require the compulsory appointment of a lawyer (see Correia de Matos, cited above, and X v. Finland, cited above, § 182). In coming to that conclusion, the Court has regard to the aforementioned margin of appreciation and may also take into account the terms of the relevant domestic legislation, which may empower or oblige the competent court to appoint a lawyer, even against the accused ’ s wishes (compare, mutatis mutandis, Croissant v. Germany, 25 September 1992, § 27, Series A no. 237 ‑ B).
125. The Court observes that these general principles laid down prior to application no. 48188/99, applied therein and reapplied subsequently (see paragraphs 122-24 above) thus recognise the margin of appreciation accorded to the Contracting States in determining how the defence of an accused who wishes to defend himself in person is to be assured. However, as is also apparent from this well-established case-law, the margin of appreciation is not unlimited.
126. The Court has made clear that when exercising the choice which Article 6 §§ 1 and 3 (c) confers on them, the national authorities must have regard to the defendant ’ s wishes as to his or her choice of legal representation, but may override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice (see Dvorski, cited above, § 79 and the case-law cited therein). In the Court ’ s view, this requirement entails an examination of the relevant and sufficient grounds provided by the domestic legislature and, when applying the relevant provisions of domestic law in the specific case of the applicant, by the domestic courts. At the level of the legislature, the legal standards and developments in other Council of Europe member States, in European Union law and international law more generally may be of some relevance. As regards the application of the impugned domestic legislation by the domestic courts, an examination of the relevance and sufficiency of the reasons provided will essentially form part of the Court ’ s evaluation of the overall fairness of the criminal proceedings. Indeed, as the Court has repeatedly held, the intrinsic aim of the minimum rights guaranteed by Article 6 § 3 is to contribute to ensuring the fairness of the criminal proceedings as a whole, which is the Court ’ s primary concern under Article 6 § 1 (see, in this regard, Ibrahim and Others, cited above, §§ 250 ‑ 51, and Simeonovi, cited above, § 113).
(iii) Limits on the margin of appreciation
127. The Court ’ s case-law provides examples demonstrating that the States ’ margin of appreciation is not unlimited in the context of Article 6 §§ 1 and 3 (c).
128. The fact that States cannot be automatically considered to have complied with the defence rights of a person charged with a criminal offence where they decide to choose one of the two alternatives under Article 6 §§ 1 and 3 (c) is illustrated, inter alia, by other case-law under Article 6 § 1, not least that relating to the validity of a defendant ’ s waiver of his Article 6 rights. If a waiver authorised by domestic law is to be effective for Convention purposes, it must be established in an unequivocal manner, must not run counter to any important public interest and must be attended by minimum safeguards commensurate with its importance (see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006 ‑ II; Dvorski, cited above, §§ 100-01, ECHR 2015; and Simeonovi, cited above, § 115). The States ’ margin of appreciation to authorise the accused ’ s defence in person alone is thus not unfettered in this context either and its limits are linked to the protection of the accused and the public interests at stake.
129. As indicated previously (see paragraph 118 above), the Court has repeatedly held that the choices made by the legislature are not beyond its scrutiny and has assessed the quality of the parliamentary and judicial review of the necessity of a particular measure. It has considered it relevant to take into account the risk of abuse if a general measure were to be relaxed, that being a risk which is primarily for the State to assess. A general measure has also been found to be a more feasible means of achieving the legitimate aim than a provision allowing a case-by-case examination, when the latter would give rise to a risk of significant uncertainty of litigation, expense and delay as well as of discrimination and arbitrariness. The application of the general measure to the facts of the case remains, however, illustrative of its impact in practice and is thus material to its proportionality (compare Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 108, ECHR 2013 (extracts), with further references).
130. Although the Contracting Parties to the Convention may choose, in accordance with the margin of appreciation afforded by the Court ’ s well ‑ established case-law (see paragraphs 119-26 above), whether to provide for mandatory legal representation, when assessing the relevance and sufficiency of the grounds supporting such a choice and whether a State has remained within the bounds of that margin the Court may have regard to how other States have exercised their choice and the criteria they rely on, as well as to developments in international and, where relevant, EU law.
131. The Court observes in this context that the comparative-law material before it shows that the Contracting Parties to the Convention surveyed – irrespective of whether they allow or prohibit the conduct by the accused of his or her own defence as a general rule – have a tendency to permit the accused ’ s defence in person without assistance by counsel in a more individualised manner. Regard is had to such factors as the level of jurisdiction concerned, the severity of the offence and the capacity of the accused to conduct his or her own defence (see, in detail, paragraphs 81-84 above).
132. The Court observes that it has taken into consideration similar factors in the context of its examination of the compliance of State measures with the other requirements of Article 6 § 3 (c), notably in determining whether the interests of justice require that free legal assistance be granted to the applicant. This is to be judged by reference to the facts of the case as a whole, having regard, inter alia, to the seriousness of the offence, the severity of the possible sentence, the complexity of the case and the personal situation of the applicant (see Quaranta v. Switzerland, 24 May 1991, §§ 32-36, Series A no. 205; Güney v. Sweden ( dec. ), no. 40768/06, 17 June 2008; Zdravko Stanev v. Bulgaria, no. 32238/04, § 38, 6 November 2012; Mikhaylova v. Russia, no. 46998/08, § 79, 1 9 November 2015; and Jemeļjanovs v. Latvia, no. 37364/05, § 89, 6 October 2016).
133. With regard to public international law, the Court observes that the wording of Article 14 § 3 (d) of the ICCPR corresponds to Article 6 § 3 (c) of the Convention. However, the HRC, in its General Comment No. 32 adopted in July 2007 (see paragraph 68 above), which reflected the Views expressed by the HRC in March 2006 in communication No. 1123/2002 brought by the applicant before it (see paragraphs 63-67 above), found that under Article 14 § 3 (d) any restriction of the accused ’ s wish to defend himself in person had to have an objective and sufficiently serious purpose and could not go beyond what was necessary to uphold the interests of justice. The interests of justice could require mandatory representation by counsel in cases of defendants obstructing the proper conduct of the trial, facing a grave charge but being unable to act in their own interests, or where it was necessary to protect vulnerable witnesses. However, the law should avoid any absolute bar against the right to defend oneself in criminal proceedings without the assistance of counsel, notably in relatively simple cases concerning less serious charges and where the defendant was capable of properly conducting his own defence.
134. The Court observes in this context that, when interpreting the provisions of the Convention, it has had regard, on a number of occasions, to the Views adopted by the HRC and its interpretation of the provisions of the ICCPR (see, inter alia, Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, §§ 114 and 124, ECHR 2005 ‑ I; Nada v. Switzerland [GC], no. 10593/08, §§ 188 and 194, ECHR 2012; and Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, §§ 140-41 and 143, ECHR 2016). The Convention, including Article 6, cannot be interpreted in a vacuum and should as far as possible be interpreted in harmony with other rules of international law concerning the international protection of human rights (compare Fogarty v. the United Kingdom [GC], no. 37112/97, § 35, ECHR 2001 ‑ XI (extracts); Al- Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001 ‑ XI; and Magyar Helsinki Bizottság, cited above, § 138). Indeed, as follows from Article 31 § 3 (c) of the 1969 Vienna Convention on the Law of Treaties, the Convention should as far as possible be interpreted in harmony with other rules of international law of which it forms part, including those relating to the international protection of human rights.
135. However, even where the provisions of the Convention and those of the ICCPR are almost identical, the interpretation of the same fundamental right by the HRC and by this Court may not always correspond. This is illustrated, for instance, by the interpretation of the scope of the right of access to court by the HRC and by this Court. The HRC considers that the right of access to court under Article 14 § 1 ICCPR concerns access to first-instance procedures and does not address the issue of the right to appeal (see paragraph 70 above). In its well-established case-law, the Court, for its part, has held that while Article 6 of the Convention does not compel the Contracting States to set up courts of appeal or of cassation, where such courts exist, the guarantees of Article 6 must be complied with, for instance by guaranteeing litigants an effective right of access to court (see, inter alia, Brualla Gómez de la Torre v. Spain, 19 December 1997, § 37, Reports of Judgments and Decisions 1997 ‑ VIII, and Andrejeva v. Latvia [GC], no. 55707/00, § 97, ECHR 2009 with further references).
136. As regards EU law, the terms of the Charter of Fundamental Rights of the European Union, the explanatory notes which accompany it and Directive 2013/48/EU suggest that the rights guaranteed by Articles 47, second paragraph, and 48(2) of the Charter correspond to those in Article 6 §§ 1, 2 and 3 of the Convention. As for the Directive, which does not appear to have been the subject of an interpretation by the Court of Justice of the European Union to date, both Articles 3(4) (“Notwithstanding the provisions of national law concerning the mandatory presence of a lawyer ...”), and 9(1) (“Without prejudice to national law requiring the mandatory presence or assistance of a lawyer ...”), appear to leave the choice regarding whether or not to opt for a system of mandatory legal representation to individual Member States.
137. In sum, the Court considers that the standards adopted by other Contracting Parties to the Convention and the international developments outlined above should be considered both by the Contracting Parties when carrying out the parliamentary review referred to above and by the Court when it exercises its supervisory function. However, given the considerable freedom in the choice of means which the Court ’ s well-established case-law has conferred on those States to ensure that their judicial systems are in compliance with the requirements of the right to defend oneself “in person or through legal assistance” in Article 6 § 3 (c) (see paragraphs 123-26 above), and given that the intrinsic aim of the latter provision is to contribute to ensuring the fairness of the criminal proceedings as a whole (see paragraphs 120 and 126 above), those standards are not determinative. Indeed, were they determinative, the member States ’ freedom regarding the choice of means and the margin of appreciation afforded to them when exercising that choice would be excessively reduced. The Court observes that an absolute bar against the right to defend oneself in person in criminal proceedings without the assistance of counsel may, under certain circumstances, be excessive. That being said, while there may be a tendency amongst the Contracting Parties to the Convention to recognise the right of an accused to defend him or herself without the assistance of a registered lawyer, there is no consensus as such and even national legislations which provide for such a right vary considerably in when and how they do so.
(iv) The role of courts and lawyers in the administration of justice
138. As the present application derives from the prosecution of the applicant for insulting a judge (see paragraph 10 above), it is worth briefly recalling the Court ’ s case-law on the role of courts and lawyers in the administration of justice.
139. The Court reiterates the most important role played by lawyers in the administration of justice. It has frequently referred to the fact that the specific status of lawyers gives them a central position in the administration of justice as intermediaries between the public and the courts and has pointed to the fact that, for members of the public to have confidence in the administration of justice, they must have confidence in the ability of the legal profession to provide effective representation (see Kyprianou v. Cyprus [GC], no. 73797/01, §§ 173-75, ECHR 2005 ‑ XIII; Morice v. France [GC], no. 29369/10, § 132, ECHR 2015 with further references; and Jankauskas v. Lithuania (no. 2), no. 50446/09, § 74, 27 June 2017).
140. That special role of lawyers, as independent professionals, in the administration of justice entails a number of duties, particularly with regard to their conduct, which must be discreet, honest and dignified (see Morice, cited above, § 133, and Jankauskas (no. 2), cited above, § 75, with further authorities).
141. In Recommendation No. R(2000)21 on the freedom of exercise of the profession of lawyer (see paragraph 74 above), the Committee of Ministers of the Council of Europe emphasised that the profession of an advocate must be exercised in such a way that it strengthens the rule of law. Furthermore, the principles applicable to the profession of advocate contain such values as the dignity and honour of the legal profession, the integrity and good standing of the individual advocate, respect towards professional colleagues as well as respect for the fair administration of justice (see the Charter of the CCBE, paragraph 75 above, and Jankauskas (no. 2), cited above, § 77).
142. While the Court has consistently held that freedom of expression is applicable also to lawyers, lawyers cannot make remarks that are so serious that they overstep the permissible expression of comments without a sound factual basis (see Karpetas v. Greece, no. 6086/10, § 78, 30 October 2012, and Morice, cited above, § 139), nor can they proffer insults (see Coutant v. France ( dec. ), no. 17155/03, 24 January 2008, and Morice, ibid.).
143. In sum, in examining the compliance of cases of mandatory legal assistance in criminal proceedings with Article 6 §§ 1 and 3 (c) of the Convention the following principles have to be applied: (a) Article 6 §§ 1 and 3 (c) does not necessarily give the accused the right to decide himself in what manner his defence should be assured; (b) the decision as to which of the two alternatives mentioned in that provision should be chosen, namely the applicant ’ s right to defend himself in person or to be represented by a lawyer of his own choosing, or in certain circumstances one appointed by the court, depends, in principle, upon the applicable domestic legislation or rules of court; (c) Member States enjoy a margin of appreciation as regards this choice, albeit one which is not unlimited. In the light of these principles, the Court has to examine, first, whether relevant and sufficient grounds were provided for the legislative choice applied in the case at hand. Second, even if relevant and sufficient grounds were provided, it is still necessary to examine, in the context of the overall assessment of the fairness of the criminal proceedings, whether the domestic courts, when applying the impugned rule, also provided relevant and sufficient grounds for their decisions. In the latter connection, it will be relevant to assess whether an accused was afforded scope in practice to participate effectively in his or her trial.
(c) Application of these principles to the present case
( i ) Examination of the relevance and sufficiency of the grounds supporting the Portuguese legislation applied in the present case
144. As to the legislation on mandatory legal representation applied by the domestic courts in the present case, the Court observes that the domestic courts based their decision on Article 32 of the Constitution and Article 64 of the CCP as interpreted in the well-established case-law of the Constitutional and Supreme Courts (see paragraphs 52-57 above). Under Article 64 § 1 (b) of the CCP in particular, in the version applicable at the relevant time, assistance by defence counsel was mandatory at the hearing before the investigating judge and during court hearings unless the proceedings could not result in a custodial sentence (see paragraphs 15 and 33 above). However, under the Portuguese Criminal Code almost all offences can, in principle, lead to a custodial sentence as this Code provides for the possibility of imposing a prison sentence even for most minor offences (see paragraph 49 above). Having regard also to the practice of the Portuguese courts (see paragraph 61 above), representation by legal counsel appears to be mandatory at all key stages of the criminal proceedings. Thus, none of the factors relied on in many other Contracting Parties to the Convention (see paragraphs 81-84 above), indicating that the assistance of defence counsel in criminal proceedings might be dispensed with, have to be addressed by the domestic courts when applying the relevant legislation. There is therefore no doubt that Portuguese law on criminal procedure is particularly restrictive when it comes to the possibility for accused persons to conduct their own defence without legal assistance if they wish to do so. The question whether Portuguese law is also restrictive when it comes to accused persons participating actively in their own defence is examined below (see paragraphs 156-59).
145. As indicated previously (see paragraph 129 above), the relevance and sufficiency of the grounds for mandatory legal representation also depend on the quality of the parliamentary and judicial review conducted in Portugal. As is apparent from the Preamble to the CCP of 1987, the provisions of the new CCP, including Article 64 § 1, were aimed at reinforcing the legal position of the accused and ensuring effective equality of arms with the public prosecutor ’ s office, whose own legal position was reinforced (see paragraph 35 above). Furthermore, it was considered that measures which could prejudice the accused ’ s personal dignity should be prevented (see paragraph 35 and 57 above).
146. The Court further notes that the Portuguese legislature reviewed certain questions relating to the mandatory assistance in criminal proceedings laid down in Article 64 § 1 of the CCP. In particular, in the revision of that provision by Law no. 59/98 of 25 August 1998 and Law no. 48/2007 of 29 August 2007, the legislative choice of this legal defence mechanism remained unchanged, the latter following confirmation by the Constitutional Court of its compatibility with the Constitution and the Convention in 2001 (see paragraphs 35 and 52 to 55 above).
147. As regards the quality of the judicial review of the impugned requirement, the Constitutional Court has held that the legislative choice reflected in Articles 61, 62 and 64 of the CCP, requiring accused persons to be represented by defence counsel in criminal proceedings even if they are themselves lawyers duly registered with the relevant Bar association, and even more so when they are not, is not incompatible with the Portuguese Constitution. Those rules seek to guarantee that the accused ’ s interests are defended in a dispassionate manner. They are also offset by the power of the defendant to revoke any measure carried out on his behalf by defence counsel, and supported by the further possibilities for the accused to intervene in person at any time in the proceedings. In other rulings, the Constitutional Court has referred to the need to protect the implementation of justice and the law as well as the interests of the accused and the need to ensure the participation of qualified professionals capable of ensuring the requisite technical preparations and observance of the ethical principles governing the profession (see paragraphs 52-55 above).
148. In a series of Supreme Court judgments, that court further explained the philosophy behind the restriction on conducting one ’ s defence alone, and the aims which the provision of mandatory legal representation sought to achieve, in the following terms: the need to ensure an equitable practice allowing the accused to prepare his defence together with defence counsel but preserving for him the right to submit requests, written pleadings and notes that did not raise issues of law; the need to provide for the dispassionate conduct of a case as an additional safeguard in criminal proceedings; the need to ensure that the accused had technical assistance so that his or her case was not weakened; and the existence of an incompatibility, procedural or otherwise, or tension between the status of an accused person and the responsibilities of defence counsel (see paragraph 57 above). The Supreme Court further outlined the procedural tools at the disposal of an accused during trial, which that court has regarded as “a practical expression of the constitutional right to petition enshrined in Article 52 of the Constitution” (see paragraph 43 above). These tools are important both in the context of the examination of the pertinence and sufficiency of the reasons underlying the legislative choices made and in the context of the assessment of the fairness of the proceedings as a whole (see paragraph 156 below).
149. In their judgments, the Courts of Appeal have reiterated these justifications for the impugned Portuguese rule on mandatory legal representation (see paragraphs 58 and 43 above).
150. The Court, for its part, attaches considerable weight to these reviews. The legislature repeatedly maintained the requirement of compulsory assistance in criminal proceedings. The Portuguese courts, notably the Supreme Court and the Constitutional Court, for their part, in their extensive and well-established case-law on the subject-matter, gave very thorough reasons why they considered the relatively strict rule of mandatory legal representation constitutional and necessary both in the accused ’ s and the public interest.
151. The Court would stress in that context that the central question as regards the impugned measure is not whether less restrictive rules should have been adopted or, indeed, whether the State could prove that, without the requirement of mandatory legal representation, an accused ’ s defence rights could never be guaranteed. Rather the core issue from the perspective of the provision of relevant and sufficient grounds for the choice exercised is whether the legislature acted within the margin of appreciation afforded to it (see also paragraphs 118 and 129 above).
152. The Court further observes that the domestic courts in the instant case reflected faithfully the reasoning followed by the Portuguese Constitutional Court, Supreme Court and Courts of Appeal for many years (see paragraphs 13, 15 and 20-25 above). They stressed that the rules on compulsory legal assistance in criminal proceedings applied by them were designed not to limit the defence ’ s action but to protect the accused by securing an effective defence (see paragraph 15 above). The domestic courts further held that the accused ’ s defence in criminal proceedings was in the public interest and the right to defence by counsel could not therefore be waived (see paragraph 22 above). The relevant provisions of the CCP reflected the premise that an accused was better defended by a legal professional trained in advocacy who was unencumbered by the emotional burden weighing on the defendant and could offer a lucid, dispassionate and effective defence (see paragraphs 15 and 53 above).
153. The decision of the Portuguese courts requiring the applicant to be represented by counsel was thus the result of comprehensive legislation seeking to protect accused persons by securing an effective defence in cases where a custodial sentence is possible. The Court can accept that a member State may legitimately consider that an accused, at least as a general rule, is better defended if assisted by a defence lawyer who is dispassionate and technically prepared, a premise reflected in the relevant provisions of Portuguese law on which the impugned decisions in the present case were based. It further accepts that even a defendant trained in advocacy, like the applicant, may be unable, as a result of being personally affected by the charges, to conduct an effective defence in his or her own case.
154. The legitimacy of such considerations applies even more forcefully where, as here, a defendant was suspended from the Bar, was not therefore a duly registered lawyer and was excluded from providing legal assistance to third persons. Furthermore, in the case of the applicant, it is clear from the case file that he had nevertheless acted as defence counsel despite his suspension and had already been charged with insulting a judge in those proceedings (see the domestic court proceedings at issue in his previous application no. 48188/99, cited above). In view of the special role of lawyers in the administration of justice, recognised in this Court ’ s well ‑ established case-law and, in that context, their duties particularly in regard to their conduct (see paragraphs 74-75 and 138-42 above), there were reasonable grounds to consider that the applicant may have lacked the objective and dispassionate approach considered necessary under Portuguese law to conduct his own defence effectively.
155. Moreover, the Court must not lose sight of the procedural context as a whole in which the requirement of mandatory representation had to be and was applied in the instant case. The particularly restrictive nature of the Portuguese legislation from the perspective of an accused like the applicant does not mean that he was deprived of all means by which to choose how his defence was conducted and to participate effectively in his own defence. While under Portuguese law on criminal procedure the technical legal defence was reserved for counsel, the relevant legislation conferred on an accused several means by which to participate and intervene in person in the proceedings.
156. The accused had the right to be present at all stages of the proceedings which affected him or her, to make statements or remain silent concerning the substance of the charge and to submit observations, statements and requests, in which he could address questions of law and facts and which, without having to be signed by counsel, were added to the case file (see paragraphs 30 and 41-45 above). Furthermore, he or she could revoke any measure carried out on his or her behalf under the circumstances set out in Article 63 § 2 of the CCP (see paragraph 32 above). Moreover, Portuguese law provided that the accused was the last person who could address the Court after oral pleadings had ended and prior to the delivery of the judgment (Article 361 § 1 of the CCP; see paragraphs 24 and 45 above and further below for the assessment of the overall fairness of the trial).
157. Lastly, if the accused was not satisfied with court-appointed defence counsel, he or she could request a change of counsel on a valid ground (see Article 66 § 3 of the CCP, paragraph 38 above). Accused persons were also free, under the relevant provisions of Portuguese law (see in particular Article 64 § 4 of the CCP, paragraph 33 above) to instruct a lawyer of their own choosing, whom they trusted and with whom they could agree on a defence strategy in their case. It is true that accused persons, if convicted, had to bear the costs of mandatory representation. However, they could request legal aid if they were unable to pay those costs (see paragraphs 33, 38 and 51 above). The Court observes in this context that the applicant was charged the relatively modest sum of EUR 150 for his representation by court-appointed counsel (see paragraph 19 above) and that this sum was never paid following the discontinuance of the enforcement order due to lack of seizable assets.
158. The Court considers that despite the requirement to be assisted by counsel, a relatively broad scope remained in practice for an accused like the applicant to influence how his defence was to be conducted in the criminal proceedings against him and to participate actively in his own defence (see, in a similar vein, Croissant, cited above, § 31).
159. In the light of the foregoing, the Court observes that the essential aim of the Portuguese rule of mandatory legal representation in criminal proceedings is to ensure the proper administration of justice and a fair trial respecting the right of the accused to equality of arms. Having regard to the procedural context as a whole in which the requirement of mandatory representation was applied, and bearing in mind the margin of appreciation enjoyed by the member States as regards the choice of means by which to ensure that an accused ’ s defence is secured, the Court considers that the reasons provided for the requirement of compulsory assistance overall and in the present case were both relevant and sufficient.
(ii) Overall fairness of the trial
160. It remains for the Court to assess whether the criminal proceedings involving the applicant, in which the domestic courts applied the impugned rule of compulsory assistance, could be considered fair as a whole.
161. The Court observes that the applicant ’ s defence was assured at the hearings before the investigating judge and the trial court by his court ‑ appointed defence counsel.
162. The applicant, for his part, did not attend these hearings and deliberately decided not to avail himself of the possibility of participating effectively in his defence together with his counsel. He did not communicate with his counsel and did not attempt to instruct her and determine with her how his defence should be conducted. In the proceedings before this Court he explained that he did not have a relationship of trust with his counsel and suspected her of being inexperienced because she came from a small village (see paragraph 97 above). However, he does not appear to have challenged the qualifications or quality of the court-appointed lawyer in the proceedings before the domestic courts. Neither did he request the domestic courts to appoint a different lawyer to represent him as he was entitled to do if he had valid grounds to support his request (see paragraph 38 above). Likewise, he did not make use of the possibility under domestic law of appointing counsel of his own choosing (see paragraph 33 above) with whom he could have agreed on a defence strategy leaving him broad scope to intervene in the proceedings while nevertheless being assisted by counsel.
163. Moreover, as shown above (see paragraphs 30 and 41-45), the applicant had the right to be present and intervene at the hearings and, in particular, to present the domestic courts with his own version of the events leading to the charges against him, but did not avail himself of any of these possibilities. The applicant never alleged before the Court that he had been unable to present his own version of the facts or his own interpretation of the relevant legal provisions to the courts.
164. The Court cannot but note in this context that the applicant chose not to participate in the hearings before the investigating judge and the trial court although he did not have confidence in the ability of his counsel to properly defend him, and takes note of the reasons advanced by him as to why she lacked that ability. However, the applicant did not allege that any procedural mistakes were made by his counsel. The mere fact that she did not respond to the Constitutional Court ’ s inquiry regarding the endorsement and signature of his constitutional appeal, written by himself, cannot, as such, be considered a mistake.
165. Moreover, the applicant had been charged, for a second time, with insulting a judge. In view of the special role of lawyers in the administration of justice, recognised in this Court ’ s well-established case-law (see paragraphs 138-42 above), such a repeat offence, which could have led to a custodial sentence of four months and fifteen days, cannot be considered as minor. It was not unreasonable, given the circumstances and the nature of the offence with which he was charged, for the domestic courts to consider that the applicant lacked the objective and dispassionate approach considered necessary under Portuguese law to effectively conduct his own defence.
166. The Court, having regard to the material before it, does not discern any cogent reasons to doubt that the applicant ’ s defence by court-appointed counsel was conducted properly in the circumstances of the case or to consider that the conduct of the proceedings by the domestic courts was in any way unfair.
167. Indeed, it appears from the applicant ’ s observations and his repeated applications to this Court concerning the requirement of compulsory assistance in criminal proceedings that the applicant ’ s main concern was not the particular criminal proceedings which gave rise to the present case but his desire to pursue his principled stance against mandatory legal assistance under Portuguese law. Beyond his general opposition to this mandatory requirement, the applicant did not put forward any valid argument pointing to the incorrectness or the unfairness of the criminal proceedings against him.
168. In view of the foregoing, the Court concludes that there is no basis on which to hold that the criminal proceedings involving the applicant in which the domestic courts applied the impugned requirement of compulsory legal assistance were unfair.
169. There has accordingly been no violation of Article 6 §§ 1 and 3 (c) of the Convention.
1. Declares, unanimously, the application admissible;