Right to Counsel

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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."

Regional Instruments

European Convention on Human Rights

Article 6 (3) (c) -

  • 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;

American Convention on Human Rights

Article 8 (2) (d) -

  • 2. Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees:...
    • d. the right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel;

Examples of Right to Counsel

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)

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

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)

Kenya

Constitution



Criminal Procedure Code (2009)

  • 137F (1) Before the court records a plea agreement, the accused person shall be placed under oath and the court shall address the accused person personally in court, and shall inform the accused person of, and determine that the accused person understands - (a) the right to - (vi) be represented by a legal representative of his own choice, and where necessary, have the court appoint

Rwanda

  • Any person detained by the judicial police shall have the right to consult with his or her legal counsel. In case he or she fails to seek one, he or she shall inform the chairperson of the bar association for assigning a counsel to him or her, but he or she has the right to accept or refuse that counsel. (Article 39 Rwandan CPC)


Uganda

Constitution

  • 28 (3) Every person who is charged with a criminal offence shall-
    • (e) in the case of any offence which carries a sentence of death or imprisonment for life, be entitled to legal representation at the expense of the State

United States

  • The 6th Amendment of the United States Constitution states that "in all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense." In Gideon v. Wainwright, 372 U.S. 335 (1963) the right to counsel was incorporated against the states. The right to counsel only attaches in those chases where a prison sentence is imposed. Argersinger v. Hamlin, 407 U.S. 25 (1972). Thus, if the crime is only punishable by a fine, the defendant has no right to counsel under the 6th Amendment. They may, however, have some right to counsel under a State Constitution or other, similar, provision. For example, in Indiana, a defendant has a constitutional right to counsel in misdemeanor cases.
  • In the recent U.S. Supreme court case Rothgery v. Gillespie County, 554 U.S. ___, The Supreme Court held 8-1 that ""a criminal defendant's initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel."
  • A defendant may chose to waive the right to counsel and represent herself at trial. Faretta v. California, 422 U.S. 806 (1975). In order for waiver to be valid, the court must find the waiver both intelligent and voluntary. Johnson v. Zerbst, 304 U.S. 458 (1938).

Zimbabwe

Rights of the accused

Table of Contents

Rights/ Protections from Police

Rights during Detention

Rights at Trial

Sentencing

Rights in Prison