Right to Counsel

Background

One of the most essential elements for a defendant is the right to legal counsel.

International Sources

International Covenant on Civil and Political Rights, Article 14, Section 3 - "In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (c) To be tried without undue delay;(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;(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;(g) Not to be compelled to testify against himself or to confess guilt."

Examples of Right to Counsel

India

• No person who is arrested shall be denied the right to consult and to be defended by a legal practitioner of his choice. (art.22 (1) of the Constitution of India)

• Decisions of the court made without the accused having been provided a lawyer are not valid (Khatri (II) v. State of Bihar (1981) 1 SCC 627)

Cambodia

• After a period of 24 hours from the beginning of the police custody has expired, the detainee may request to speak with a lawyer or any other person who is selected by the detainee, for 30 minutes provided that the selected person is not involved in the same offence. (art.98 Cambodian Code of Criminal Procedure- CCCP)

• When a charged person appears for the first time, the investigating judge should inform him of his right choose a lawyer or to have a lawyer appointed according to the Law on the Bar. (art. 143 CCCP)

Zimbabwe

• The accused shall be permitted to defend themselves or, at their own expense, get a legal representative of their own choice (s (18)(3)(d) Constitution)

• If the accused cannot afford a legal representative, a magistrate can deem it necessary and desirable in the interest of justice to certify that such a person have this assistance (Legal Aid Act, part III s (10)(1) (a),(b) 1996)

• Every person charged with an offence may make his defence at his trial and have the witnesses examined or cross-examined by a legal practitioner representing him (part XII, s (191) (a) CPEA)

China

• A crime suspect has the right after the initial interrogation or from the day on which compulsory measures are adopted against him, to hire a lawyer to offer him legal consultancy or to act on his behalf in making appeal or accusation (art.96 CPL 1996) Also art. 11, 32, 34, 36 CPL