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THE FACTS
The applicant, Mr Carlos Correia de Matos, is a Portuguese national. He was born in 1944 and lives in Viana do Castelo (Portugal). He presented his own case to the Court. He is an auditor and lawyer. His name was temporarily removed from the Bar Council’s roll by a decision of the Bar Council of 24 September 1993, published in the Official Gazette on 9 June 2000, which considered the exercise of the profession of lawyer to be incompatible with that of auditor.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 4 July 1996 the applicant was committed to stand trial at the Ponte de Lima District Court for insulting a judge. The investigating judge officially assigned a lawyer to represent the applicant, contrary to the wishes of the latter, who stated, relying on Article 6 § 3 (c) of the Convention, that he wanted to defend himself.
The applicant therefore appealed against the committal order (despacho de pronúncia) to the Porto Court of Appeal (Tribunal da Relação). The investigating judge declared the appeal inadmissible, however, on the ground that it had not been lodged by a lawyer and the applicant could not defend himself in person. The applicant lodged a complaint with the President of the Court of Appeal, which was dismissed for the same reason.
The applicant then lodged a constitutional appeal with the Constitutional Court (Tribunal Constitucional). In an order of 16 May 1997 the President of the Court of Appeal stated that the issue raised by the applicant, namely the impossibility of defending himself, should be determined by the Constitutional Court and, accordingly, ordered the appeal to be transmitted to that court.
On 23 September 1997 the judge rapporteur at the Constitutional Court, after noting that the applicant’s name had been temporarily removed from the Bar Council’s roll, asked him to instruct a lawyer pursuant to the Constitutional Court Act. On 6 October 1997 the applicant alleged that the relevant provision of that Act was contrary to the Constitution and asked for his appeal to be examined. In an order of 4 November 1997 the judge rapporteur considered that the provision in question was not contrary to the Constitution and again asked the applicant to instruct a lawyer, failing which the Constitutional Court would refuse to examine his appeal. On 19 November 1997 the applicant requested the matter to be submitted to a committee (conferência) of judges.
In a judgment of 13 October 1999 the committee upheld the order complained of and pointed out that neither the relevant provision of the Constitutional Court Act nor the similar provisions of the Code of Civil Procedure were contrary to the Constitution. The Constitutional Court accordingly requested the applicant to instruct a lawyer.
In the meantime the Ponte de Lima Court had fixed a hearing for 15 December 1998. The applicant maintained that at the start of the hearing he had requested leave to defend himself, which the court had refused. He had then been assigned a lawyer by the court.
In a judgment of 21 December 1998 the court convicted the applicant and sentenced him to 170 day-fines. The applicant was also ordered to pay 600,000 Portuguese escudos (PTE) in damages to the assistente (the judge he had insulted).
The applicant appealed against that judgment, but the judge, considering that his appeal was merely a statement within the meaning of Article 98 of the Code of Criminal Procedure, decided not to transmit it to the Court of Appeal. A complaint submitted by the applicant was treated in the same way in an order of 23 May 1999.
On 3 December 1999 the judge of the Ponte de Lima Court, considering that the Amnesty Law no. 29/99 of 12 May 1999 should be applied in the present case, declared that the sentence imposed on the applicant (and not yet enforced) was void. However, on 14 August 2000 the applicant learned that the prosecution had instituted enforcement proceedings for the sum payable to the assistente in damages.
Following a request by the applicant in that regard, the judge rapporteur at the Constitutional Court also declared, on 2 February 2000, that the proceedings still pending before that court had terminated.
B. Relevant domestic law and practice
Under Articles 62, 63 and 64 of the Code of Criminal Procedure, defence counsel exercises the accused’s statutory rights. In certain cases, particularly as regards presence at hearings and the lodging of applications, it is compulsory to instruct counsel. If the accused does not appoint a lawyer, the judge must officially assign one.
According to the established case-law of the Supreme Court, a defendant in criminal proceedings cannot represent himself in person even if he is a lawyer or judge. The Supreme Court considers that the statutory provisions authorising judges and lawyers to act in person before the courts are inapplicable in criminal cases (judgment of 19 March 1998, Boletim do Ministério da Justiça no. 475, p. 498).
COMPLAINTS
Relying on Article 6 §§ 1 and 3 of the Convention, the applicant complained that he had not had a fair trial. His main complaint was that he had been prevented from defending himself.
THE LAW
The applicant complained that he had been prevented from defending himself and submitted that he had therefore not had a fair trial. He relied on Article 6 §§ 1 and 3 of the Convention, which provide, inter alia, as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...
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3. Everyone charged with a criminal offence has the following minimum rights:
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(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;”
The Government raised two objections at the outset: the applicant was not a victim and had failed to exhaust domestic remedies.
A. Applicant’s victim status
The Government, referring to the case-law of the Commission according to which alleged violations during trial are rectified by the applicant’s acquittal (X. v. Austria, no. 5575/72, Commission decision of 8 July 1975, Decisions and Reports (DR) 1, p. 44), pointed out that the applicant had ultimately been granted an amnesty in the proceedings in question. They submitted that this case-law was applicable to the present case because the amnesty had erased the effects of his conviction.
The applicant pointed out that he had been ordered to pay damages to the assistente and that his car had subsequently been impounded in order to enforce that obligation. He also referred to the non-pecuniary damage caused by the alleged violation and argued that he could claim to be a “victim” within the meaning of Article 34 of the Convention.
The Court acknowledges that an acquitted defendant can no longer claim to be a victim of alleged violations of the Convention during the proceedings (see the Commission decision X. v. Austria cited above, and X. v. the United Kingdom, no. 8083/77, Commission decision of 13 March 1980, DR 19, p. 223). It accepts that the same reasoning could be applied where an accused is granted an amnesty.
This conclusion, however, can only be drawn where the applicant is no longer affected at all, having been relieved of any effects to his disadvantage (see Jón Kristinsson v. Iceland, judgment of 1 March 1990, Series A no. 171-B, Opinion of the Commission, p. 48, § 36). In the present case the applicant was also ordered to pay damages to the assistente. He can therefore still claim to be the victim of a breach of Article 6 of the Convention.
B. Exhaustion of domestic remedies
The Government submitted that the applicant had not validly exhausted domestic remedies. They noted that he had lodged an appeal with the Constitutional Court in respect of the complaint raised before the Court. That appeal was not examined by the Constitutional Court, however, on account of the applicant’s failure to instruct a lawyer. The applicant had therefore not validly exhausted domestic remedies.
The applicant alleged that he had relied, before the Constitutional Court, on the right to defend himself in person. He also submitted that the Constitutional Court had not taken account of the fact that the decision to remove his name from the Bar Council’s roll had been unlawful.
The Court reiterates firstly that it is true that, according to the established case-law of the Convention institutions, domestic remedies are not exhausted if an appeal is dismissed because of the appellant’s failure to comply with a formality. It finds, however, that in the present case the Constitutional Court had refused to examine the appeal for the sole reason that the applicant had not instructed a lawyer, but had insisted on defending himself. In these circumstances the question of the possible failure to exhaust domestic remedies overlapped with the issue whether the applicant could claim the right to defend himself in the criminal proceedings brought against him.
The objection raised by the Government in that connection does not therefore require a separate examination.
C. Merits of the application
The Government pointed out at the outset that the right to defend oneself in person under Article 6 § 3 (c) was not an absolute right; the States could, in certain circumstances, make it compulsory to instruct a lawyer.
In the Government’s submission, a distinction had to be drawn between a personal defence, which allowed the accused to address the court and submit his or her view of the facts of the case directly, and a technical defence, which had to be conducted by a lawyer for certain stages of the proceedings, such as hearings or lodging appeals. The Government stressed in that connection that the applicant could not rely on his capacity as a lawyer, because his name had been temporarily removed from the Bar Council’s roll.
In the Government’s submission, the requirement of legal representation for certain stages of the proceedings was an adequate and proportionate means of which States could avail themselves in order to ensure greater safeguards and rigour in conducting an accused’s defence.
The applicant accepted that the right to defend oneself in person was not an absolute right, either in the interests of justice or of the accused. He submitted, however, that in the present case that right had been curtailed in a manner which could not be deemed to have served the interests of justice or those of the accused.
In the applicant’s submission, there had clearly been a breach of Article 6 § 3(c) at the legislative level. He stressed that the legislation of other member States of the Council of Europe allowed an accused to defend himself in person. He went on to state that there had also been a breach of that provision at the judicial level because the Portuguese courts had assigned him a lawyer against his will.
The Court will examine the applicant’s complaint in accordance with the general rule set out in paragraph 1 of Article 6 of the Convention, while bearing in mind the requirements of paragraph 3 (c) of that Article, which constitute particular aspects of the right to a fair trial, guaranteed by paragraph 1 (see, among many other authorities, Artner v. Austria, judgment of 28 August 1992, Series A no. 242, p. 10, § 19).
It observes that the Commission ruled on a number of occasions on the right to defend oneself in person provided for in Article 6 § 3(c) of the Convention. In the X. v. Norway case (decision of 30 May 1975, DR 3, p. 43) the Commission held that although this provision guarantees that proceedings against the accused will not take place without adequate representation for the defence, it does not give the accused the right to decide himself in what manner his defence should be assured. The decision as to whether the applicant will defend himself in person or 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.
In the Weber v. Switzerland case (decision of 17 May 1995, unreported), the Commission held that the choice between the two possibilities referred to in Article 6 § 3 (c), that is, whether the applicant will defend himself in person or be represented by a lawyer of his own choosing, or in certain circumstances one appointed by the court, is a matter for the competent authorities to decide (see also X. v. Austria, no. 7138/75, Commission decision of 5 July 1977, DR 9, p. 50).
The former Court has also previously held that “the requirement that a defendant be assisted by counsel at all stages of the Regional Court’s proceedings – which finds parallels in the legislation of other Contracting States – cannot ... be deemed incompatible with the Convention” (see Croissant v. Germany, judgment of 25 September 1992, Series A no. 237-B, p. 32, § 27).
The Court does not see any reason to depart from that case-law. It considers that 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.
There is therefore no evidence to support the allegation that the trial in question was unfair or that the applicant’s rights of defence were breached.
Accordingly, there is no appearance of a violation of Article 6 §§ 1 and 3 (c) of the Convention. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 § 3 of the Convention.
For these reasons, the Court unanimously
Declares the remainder of the application inadmissible.
Vincent BergerGeorg Ress
RegistrarPresident
Full & Egal Universal Law Academy