College for Criminal Law Science of Beijing Normal University

1. Introduction

Professional defence is crucial in criminal proceedings as a professional lawyer´s advice is the defendants main legal resource in making use of the suspects and accused rights during criminal proceedings and it is the main weapon against the risk of being wrongfully convicted[1]. This holds in particular true in cases where a defendant faces the death penalty or other severe punishment, for instance life imprisonment[2]. Attention has been paid also to the strong correlation between poverty and the risk of unfair criminal conviction due to low quality or even completely absent professional defence in criminal proceedings[3]. In all criminal justice systems poverty on the one hand and law enforcement agencies driven by the interest to clear up serious crime on the other place a heavy toll on procedural fairness, equality of arms and equal treatment[4]. Moreover, a general move towards security as a primary goal of criminal law enforcement has also contributed to view defence councils rather as obstacles on the way to achieve maximum efficiency in the control of crime than as a normative asset necessary to implement the rule of law and the principle of fairness and equality. 

The crucial role played by the defence council is in principle also recognized in China where miscarriage of justice cases have been linked to serious flaws in criminal defence. Reports on miscarriage of justice cases have included sentences of death and life imprisonment allegedly based on false confessions extracted by torture and/or on other faulty evidence[5] and defence councils not being able to introduce evidence on torture and other relevant issues during the criminal trial. In recent years also in the United States of America the quality of defence in particular in death penalty cases and the problem of wrongful convictions[6] have been discussed[7]. In 2003, the Governor of Illinois decided – after having put in place a moratorium on executions - to commute all death sentences to lesser punishment[8]. This move was encouraged by the results of a study that demonstrated significant deficits in the implementation of proper professional defence[9]. The particular relevance of the risk of wrongful convictions in death penalty cases [10] becomes apparent in studies on the public opinion on the death penalty which show that support of capital punishment is significantly reduced if life imprisonment without parole is available as punishment for murder and if the perception prevails that innocents have been executed over the last five years[11].

Faced with these challenges the US Federal Government has initiated the Justice for All Act 2004 which provides 350 million US$ to improve the state of defence representation that - according to a view widely shared among criminal justice professionals - often undermines the deliverance of justice in death penalty cases[12]. A Federal grant program, to be administered by the Attorney General, shall now improve the quality of legal representation provided to indigent defendants in State capital cases. The grants shall be used to establish, implement, or improve an effective system for providing competent legal representation in capital cases. An effective system is regarded to be one in which a public defender programme establishes qualifications for lawyers who may be appointed to represent defendants in capital cases, establishes and maintains a roster of qualified lawyers and assigns lawyers from the roster, trains and monitors the performance of such attorneys, and ensures funding for the full cost of competent legal representation by the defence team and any outside experts. With this programme standards have been established as regards representation by a qualified lawyer, training, selection and assignment of qualified lawyers, monitoring the performance and funding of public criminal defence. Standard setting has also been initiated by the American Bar Association, the VERA Institute of Justice and various local associations[13].

Moreover, federal legislation in the US has highlighted another facet of death penalty proceedings, that is compensation for the wrongfully convicted[14]. Recent legislation increases the maximum amount of damages that the U.S. Court of Federal Claims may award against the United States in cases of unjust imprisonment from a flat $5,000 to $50,000 per year in non-capital cases, and to $100,000 per year in capital cases. In the state of Texas the “Fair Defence Act” went into force in 2002 – dealing also with the problem that indigent defendants are at a higher risk of receiving the death penalty due the huge costs coming with effective defence. The Texan Fair Defence Act provides that a defence council is assigned to indigent suspects no later than five days after their arrest and it also provides research assistance to lawyers appointed in capital cases[15]. In Illinois, since 2000 fees for lawyers who defend death penalty cases have been raised [16] in order to reduce the impact of poverty on the outcome of capital criminal cases. 

However, qualification, training, selection and performance of defence councils [17] are dependent on the general criminal procedural framework and, furthermore, the legal culture within which defence in criminal cases takes place. In order to be become effective, a range of procedural rights has to be at the disposition of defendant and defence council and a legal culture has to treasure defence as a main pillar of the rule of law and a mechanism to protect human rights of suspects and defendants. 

2．European Standards of Criminal Defence

2.1 The European Convention on Human Rights

2.1.1 The European Convention on Human Rights Standard of Criminal Defence and Other Human Rights Instruments

Art. 6 of the European Convention on Human Rights provides for certain minimum fundamental criminal procedural rights related to defence and defence council[18].

Art. 6 (3):

       Everyone charged with a criminal offence has the following minimum rights:

               a      to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

               b     to have adequate time and facilities for the preparation of his defence;

               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;

               d     to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

               e      to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

The basic right to have effective defence in criminal proceedings is a fundamental element of a fair trial [19] and implements the fairness principle, “equality of arms” and the general principle of rule of law.

The European Convention on Human Rights corresponds in general to other human rights instruments. So, the American Convention on Human Rights provides in Article 8 also that

 2.   Every person accused of a criminal offence ... 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.

Art. 14 of the International Covenant on Civil and Political Rights [20] spells out in a language quite close to that of the Art. 6 of the European Convention on Human Rights that

…

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.

The United Nations have developed standards as regards criminal defence with elaborating Basic Principles on the Role of Lawyers[21]. These principles state in their relevant parts:

1.         All persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings

3.        Governments shall ensure the provision of sufficient funding and other resources for legal services to the poor and, as necessary, to other disadvantaged persons. Professional associations of lawyers shall co-operate in the organisation and provision of services, facilities and other resources.

The Council of Europe Standard Minimum Rules for the Treatment of Prisoners [22] contain Article 93 which says:

“An untried prisoner shall be entitled, as soon as he is imprisoned, to choose his legal representative, or shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him, and to receive, confidential instructions. At his request he shall be given all necessary facilities for this purpose. In particular, he shall be given the free assistance of an interpreter for all essential contacts with the administration and for his defence. Interviews between the prisoner and his legal adviser may be within sight but not within hearing, either direct or indirect, of a police or institution official”.

Then, the European Agreement Relating to Persons Participating in Proceedings of the European Court of Human Rights embodies Article 3 § 2 (c) which provides in its relevant parts:

“2.  As regards persons under detention, the exercise of this right shall in particular imply that:

...

(c)  such persons shall have the right to correspond, and consult out of hearing of other persons, with a lawyer qualified to appear before the courts of the country where they are detained in regard to an application to the Court, or any proceedings resulting therefrom.”

As a general principle the European Court on Human Rights has stressed consistently that all rights enshrined in the European Convention on Human Rights must be practical and effective[23]. This applies also to the right to defence. The right to defence in order to become practical and effective must therefore be interpreted from a perspective of full implementation.

The right to have effective defence is again related to other basic rights, for example to the right to remain silent. The right on information on the right to be defended and to be advised by a defence council represents beside the basic right on being informed about the right to remain silent a second most important instrument in implementing the right to remain silent. It is in particular the right to have a defence council which makes the right to remain silent meaningful[24]. A silent accused has no possibility at all to influence proceedings and to establish a real and effective defence. It is the defence council who after all represents the accused and while the accused may remain silent nevertheless can participate actively in investigation or trial proceedings. 

But, the right to be informed to have a defence council together with the right to remain silent provides only for such conditions which comply with the principle of a fair procedure. In general, a suspect is disadvantaged in front of police officers or prosecutors well trained in interrogation techniques and knowledgeable in those offence characteristics which have to be established in order to have a sound case. The suspect, on the contrary, is neither familiar with the differences between various legal forms of dolus nor with the kind of motives which lead to increases in the prescribed penalties. So, in some, though certainly not that many, cases the only reasonable strategy for a suspect is to remain silent first, then get advise from the defence council and based upon that advise the suspect may then freely and informed decide on whether to let him-/herself be interrogated.

2.1.2 The Absolute Character of the Right to Defence in Criminal Proceedings

The right to defence during criminal proceedings is absolute insofar as the defendant does not have to provide for evidence that by being restricted in efficient defence he or she has suffered disadvantages as regards the results of proceedings or trial. On appeal or before the European Court on Human Rights it is sufficient that the defendant claims that obstacles or restrictions occurred as regards efficient defence. The purpose of a defence council is not only directed towards influencing the outcome of criminal proceedings or the trial. The defence council has also the function to assist and to support the defendant in a difficult and stressful situation. As both functions of the defence council have to be guaranteed the right to efficient defence is violated if defence in one of these dimensions has been restricted.

2.1.3 The Meaning of Criminal Defence

The European Convention on Human Rights – on the condition that a person has been charged with a criminal offence – grants the right to defence by the person him- or herself or through legal assistance. Insofar, two forms of criminal defence are addressed and the wording of Art 6, 3c has provoked the question of whether it suffices to provide either for efficient self defence or for efficient defence through a defence council or whether both forms of defence have to be offered by national procedural law and practice. It seems clear that the right to have efficient defence cannot be reduced to either being represented by a defence council or defending oneself in person. However, the European Court of Human Rights has ruled that an accused person who lawfully chooses to defend himself in person waives his right to be represented by a lawyer[25]. This opinion is questionable as the two forms of defence fulfill different procedural functions. Defence by the defendant himself has the function to provide for a maximum of input by the defendant in terms of personal information (something the defence council cannot do) and defence by a lawyer has the function to provide for professional knowledge and legal strategies (moreover for personal assistance). Insofar, it is evident that in many cases only both forms of defence together will guarantee an effective defence in criminal proceedings.

Another problem has been discussed with respect to the question of whether the state can restrict the right to have a lawyer if the defendant is assessed to be capable to defend him- or herself adequately or efficiently. Art. 6, 3c differentiates between defence by the defendant himself, defence by a defence council and mandatory assignment of a defence council or a legal aid lawyer (the latter under the conditions that the defendant cannot afford a defence lawyer and that the interests of justice require to assign a legal aid lawyer). So, in principle it would not make sense to differentiate between mandatory assignment of a legal aid lawyer on the one hand and access to a lawyer of a defendants choice on the other hand if the state could restrict access to a lawyer of ones own choice to those cases where the defendant is not capable to defend himself effectively (because this is essentially the ground which establishes interests of justice). Insofar, it is clear that the European Convention on Human Rights guarantees the right to have a defence council under all circumstances[26]. The right to have a defence council may not be restricted. Restrictions may apply, however, to the provision of free legal aid.

2.1.4 The Implementation of the Right to Criminal Defence: Legal Aid

The right to have a legal aid lawyer provided by the state is made dependent on two conditions[27]. First, the defendant lacks sufficient means to pay for a defence council. Lack of sufficient means is not defined in the European Convention. However, most European justice systems have implemented legal aid which allows for identifying the standards to be applied when deciding on the element of lack of means. The defendant, however, has the burden to proof his or her indigency. The test to be applied should not be beyond all doubts but should refer to a lower level of proof[28]. As regards the second condition, that is the interests of justice require assignment of a legal aid lawyer, three situations are recognized as indicating interests of justice:

● Complexity of the case, in terms of legal and factual complexity,

● Personal characteristics of a defendant that restrict the capability of a defendant in defending him- or herself,

● Seriousness of the alleged crime and severity of the sentence that might be imposed.

As regards seriousness of crime and the severity of the potential sentence the European Court on Human Rights has ruled that when the defendant is at risk of being deprived of liberty interests of justice require assignment of a legal aid lawyer[29]. This is consistent with national systems of legal aid in European countries[30].

In general, the right to a legal aid lawyer does not include the right of a lawyer of ones own (free) choice[31]. The Court has ruled that the European Convention does not guarantee such a right[32]. However, the Court has found also in recent decisions that, in general, an accused’s choice of council should be respected ^[33] and that assignment of a defence council made against the wishes of the accused will be “incompatible with the notion of a fair trial…if it lacks relevant and sufficient justification”^[34]. It seems evident that on the basis of the right to have effective legal defence the choice of legal aid lawyers by the state (or the court) must not lead to a situation where trust between defendant and lawyer – as the very basis of effective defence – cannot develop. In such a case – no basis for trust between defence council and defendant and no sufficient justification for a state appointed defence council – the state may not insist on a particular assignment^[35]. The view that free choice of defence council should prevail is consistent also with the United Nations Basic Principles on the Role of Lawyers [36] which state that all persons are entitled to the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings[37].

It is also interesting to see that the European Court ruled that differences in payments or fees of legal aid councils compared with lawyers hired on a private basis do not infringe on the right to effective defence[38]. If a defendant has the impression that due to small and insufficient fees a legal aid lawyer does not perform well then the defendant must apply for removal of the lawyer and the assignment of a new defence council. However, free legal aid must be “effective”, mere appointment of a legal aid council does not meet this requirement[39]. National authorities have to intervene whenever failure by a legal aid lawyer is manifest or sufficiently brought to their attention[40].

Another problem discussed with respect to legal aid lawyers concerns the question whether legal aid and costs are in fact free or whether the defendant may be obliged to pay for expenses after the trial has been carried out. While the European Court held that in case of an interpreter necessary to translate during a trial such interpreter services must be free in the sense that the state may not recover such expenses from the convicted person [41] it has also ruled that in case of legal aid lawyers such expenses may be recovered from the convicted person (if for example the convicted person is in possession of means after the trial has ended)[42].

2.1.5 Statutory Restrictions Based on Qualification and Other Grounds

The right to have a legal council does not preclude the state to set requirements as regards qualifications of lawyers as well as other standards (including for example a maximum number of defence councils representing a defendant)[43].

2.1.6 Preparation of Defence

The European Convention not only guarantees the right to be represented by a defence council but also a range of other rights which themselves guarantee the right to effective defence.

Art. 6, 3b European Convention on Human Rights declares that any defendant in criminal cases must:

« have adequate time and facilities for the preparation of his defence ».

This right applies to the defendant who chose to defend himself as well as to a defence council and shall prevent that the defendant is tried in a speedy and hasty trial. Furthermore, equality of arms shall be guaranteed.

The European Court has adopted a case by case approach when determining whether the defendant and/or the defence council had adequate time and facilities to prepare defence. Insofar, an approach is also adopted which makes the judgment on adequacy dependent on a look at both the time the defendant had and the time the defence council had when preparing for a criminal trial [44]. So, a short period of time available for a defence council may be seen to be adequate if the defendant himself had enough time to prepare for trial.

The judgement on adequacy of the time available for preparation depends on the complexity of the case. It has also to be considered whether other cases have to be dealt with by the defence council, in particular if the low fees (which do not allow to run the law office). Then, time must be sufficient to get acquainted with the results of investigations and to prepare for all relevant arguments that should be presented during trial. As regards facilities for the preparation of defence evidence collected by prosecution and police has to be disclosed and the defence council must have the right to have access to the case file latest at the time of accusation. Access to case files can be restricted for example if certain sources of information (informants) have to be protected.

2.1.7 When Must a Defence Council be Admitted/Assigned?

Although the primary purpose of Article 6, as far as criminal matters are concerned, is regarded by the European Court on Human Rights to ensure a fair trial by a tribunal competent to determine “any criminal charge”, the court has the rule of Art. 6 not restricted to the stage of proceedings after the defendant has been formally charged. Although the right  to benefit from the advice and professional defence of a lawyer already at the stage of police interrogation is not explicitly set out in the Convention, Art. 6 is applied also to pre-trial proceedings. Thus, Art. 6 – especially §3 – is already relevant before a case is sent for trial [45]. The European Court on Human Rights has ruled that if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions, then the defendant is entitled to be defended by a lawyer[46]. The way in which Art. 6, 1 and 3 (c) is to be applied during the investigative and pretrial stage of criminal proceedings according to the view of the European Court on Human Rights depends on the special features of the proceedings involved and on the circumstances of the case. In its judgment in John Murray v. the United Kingdom, the Court has ruled that, although Art. 6 will normally require that the accused be allowed to have the assistance of a lawyer already before police interrogation starts[47], this right may be subject to restriction for good cause. The question in each case of restriction is however “whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing”[48]. The European Court on Human Rights has held in several decisions that a defendant may be denied access for a limited period of time if grave interests require to do so and if such restrictions do not appear to be unfair seen from the defendants interest to have proper legal advice and support in the context of police investigations[49].

2.1.8 The Right to Confidential Communication

In order to be able to fulfill the functions of a defence council properly and effectively, trust must be established in the relationship between defence council and client. This will only be possible if communication between lawyer and defendant is not be monitored. Communication between lawyer and client then must be possible from the very beginning of criminal investigation against a suspect. Certain exceptions are made to this rule; so, for example periods of being held incommunicado for reasons of preventing grave risks to public and individual interests (terrorism) have been introduced[50], however, under strictly monitored restrictions.

The right to communicate with a lawyer is in particular important for suspects and accused who are detained. This right is not explicitly mentioned in the European Convention on Human Rights (but it is mentioned in the International Covenant on Civil and Political Rights, see Art. 14, 3b). However, the European Court on Human Rights has consistently ruled that adequacy of facilities to prepare defence is dependent on the right to communicate with a lawyer and that the right to be represented by a defence council includes the right to communicate with a defence council. The right of communication between lawyer and defendant includes confidentiality and with that conditions of communication which preclude that a third person may listen or that other forms of surveillance are put in place. Without confidentiality of communication the right to defence in criminal proceedings would loose its practicability and effectiveness[51]. So, the European Court on Human Rights has found that the presence of the police officer within hearing during a suspects first consultation with his lawyer infringes the right to an effective exercise of defence rights and that there is, in that respect, a violation of Art. 6, 3 (c) of the European Convention on Human Rights taken in conjunction with Article 6, 1 [52].

The functions of a defence council extend in pretrial proceedings not only to preparation of defence during  the trial, but also on identification of evidence in early stages of proceedings when the period between offence and interrogation of witnesses is short enough to exploit fully the memory of witnesses. But also control of all law enforcement measures during pretrial proceedings is part of the defence councils´ tasks. Finally, the defence council´s function covers assistance and support of the detained defendant in other matters.

2.1 9 The Right to Present and to Examine Evidence During Trial

Art. 6, 1 covers the fair trial and fair procedure principle which contains the principle that the defendant must have had an adequate and sufficient opportunity to present factual and legal arguments during the procedure and trial; with that the equality of arms principle is shielded and another dimension of a “practical and effective” right to criminal defence [53] was implemented. The (enforceable) right to present and to examine evidence during the trial stage of criminal proceedings of course becomes more important, if – as it is the case in many inquisitorial systems – the rights of the defence council are rather limited during the investigative stages. Here, only a strong position of defence in the trial itself may serve to balance restricted possibilities to intervene in the investigatory parts of proceedings.

2.2 European Union Standards

The European Union has also started to deal with procedural rights in criminal proceedings[54]. Currently, a proposal for a Council Framework Decision on certain procedural rights in criminal proceedings throughout the European Union is discussed[55]. It is not clear yet whether and when this proposal will be adopted. However, the proposal is an important expression of standards of defence in criminal proceedings in Europe.

The European Commission proposal as of 3 May 2004 refers to various documents which not only justify but also demand the setting of common standards of defence in the European Union. Article 6 of the Treaty on the European Union (TEU) provides that the Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to Member States. Moreover, in December 2000, the European Commission, the Council and the Parliament jointly signed the Charter of Fundamental Rights of the European Union[56]. The Presidency Conclusions of the Tampere European Council[57] stated that mutual recognition should become the cornerstone of judicial cooperation, but makes also the point that mutual recognition and the necessary approximation of legislation will facilitate the judicial protection of individual rights. The Commission Communication to the Council and the European Parliament of 26 July 2000 on Mutual Recognition of Final Decisions in Criminal Matters[58] states that it must be ensured that the treatment of suspects and the rights of the defence council do not suffer from the implementation of the principle of mutual recognition but that the safeguards will even be improved through the process.

The Charter of Fundamental Rights of the European Union which is part of the European Constitution [59] covers the civil, political, economic and social rights of European citizens and seeks to express the constitutional traditions and international obligations common to all European Union Member States. The section “Justice” (Articles 47-50) lays down the right to a fair trial (Art. 47, Art. 107) and provides that respect for the rights of the defence of anyone who has been charged with a criminal offence shall be guaranteed (Art. 48, Art. 108, 2). It provides for the presumption of innocence, legality and proportionality of criminal offences and penalties. It extends the principle of ne bis in idem to the whole of the EU (Art. 110).

The Procedural Rights Framework Decision proposal contains the following rights of defence in criminal proceedings:

Article 1

Scope of application of procedural rights

1. This Framework Decision lays down the following rules concerning procedural rights applying in all proceedings taking place within the European Union aiming to establish the guilt or innocence of a person suspected of having committed a criminal offence, or to decide on the outcome following a guilty plea in respect of a criminal charge. It also includes any appeal from these proceedings. Such proceedings are referred to hereafter as “criminal proceedings”.

2. The rights will apply to any person suspected of having committed a criminal offence (“a suspected person”) from the time when he is informed by the competent authorities of a Member State that he is suspected of having committed a criminal offence until finally judged.

Article 2

The right to legal advice

1. A suspected person has the right to legal advice as soon as possible and throughout the criminal proceedings if he wishes to receive it.

2. A suspected person has the right to receive legal advice before answering questions in relation to the charge.

Article 3

Obligation to provide legal advice

Notwithstanding the right of a suspected person to refuse legal advice or to represent himself in any proceedings, it is required that certain suspected persons be offered legal advice so as to safeguard fairness of proceedings. Accordingly, Member States shall ensure that legal advice is available to any suspected person who:

– is remanded in custody prior to the trial, or

– is formally accused of having committed a criminal offence which involves a complex factual or legal situation or which is subject to severe punishment, in particular where in a Member State, there is a mandatory sentence of more than one year’s imprisonment for the offence, or

– is the subject of a European Arrest Warrant or extradition request or other surrender procedure, or

– is a minor, or

– appears not to be able to understand or follow the content or the meaning of the proceedings owing to his age, mental, physical or emotional condition.

Article 4

Obligation to ensure effectiveness of legal advice

1. Member States shall ensure that only lawyers as described in Article 1 (2) (a) of Directive 98/5/EC47 are entitled to give legal advice in accordance with this Framework Decision.

2. Member States shall ensure that a mechanism exists to provide a replacement lawyer if the legal advice given is found not to be effective.

Article 5

The right to free legal advice

1. Where Article 3 applies, the costs of legal advice shall be borne in whole or in part by the Member States if these costs would cause undue financial hardship to the suspected person or his dependents.

2. Member States may subsequently carry out enquiries to ascertain whether the suspected person’s means allow him to contribute towards the costs of the legal advice with a view to recovering all or part of it.

The proposal for a Framework Decision in principle recognizes the standards already established through the European Convention on Human Rights (as well as the International Covenant of Civil and Political Rights), stresses the salience of a qualified defence council and guarantees that defence in criminal proceedings is effective.

The Corpus Juris project[60] aims at the introduction of a European criminal procedural law common to all European Union members. In its relevant parts it states the rights of the accused and the right to criminal defence:

Article 29 – Rights of the accused

1 In any proceedings brought for an offence as set out above (Articles 1 to 8), the accused enjoys the rights of the defence guaranteed by Article 6 of the European Convention on Human Rights and Article 10 of the UN International Covenant on civil and political rights.

2 A person may not be heard as a witness but must be treated as accused from the point when any step is taken establishing, denouncing or revealing the existence of clear and consistent evidence of guilt and, at the latest, from the first questioning by an authority aware of the existence of such evidence.

3 From the time of his first questioning, the accused has the right to know the content of the charges against him, the right to be assisted by a defence lawyer of his choice, and, if necessary, an interpreter. He has the right to remain silent.

Art. 29 refers fully to the European Convention on Human Rights as well as to the International Covenant on Civil and Political Rights as regards the right to criminal defence and confirms with that the standards of criminal defence that should be applied without exemptions to any national system of criminal procedure.

3 The Legal Framework of Criminal Defence in China

The Chinese Constitution mentions in Art. 125, s. 2 the right to defence in criminal cases. The criminal procedural law 1996 as well as the Law on Lawyers give rules which substantiate the constitutional right of criminal defence[61]. According to §32 of the Criminal Procedural Law 1996 the suspect or accused may exercise his right to defence by defending himself personally or by mandating one or two other persons with defence. The persons who may be mandated are enumerated in §32 as lawyers, persons recommended by peoples associations or units to which the suspect/accused belongs, relatives, friends or the guardian of the suspect/accused. §33 gives the suspect/accused the right to mandate a lawyer from the time on when the case has been transferred to the public prosecutor in order to prepare a decision on the indictment. In case of private prosecution the suspect/accused has the right of a defence council at any stage of the proceedings. §34 deals with “necessary criminal defence” and the duty of the court to mandate a lawyer with the task of defending the accused. At the courts discretion a defence council can be assigned to the accused after the prosecutor has indicted the suspect and if the suspect because of his financial standing or for other reasons has not sought the support of a lawyer. If the defendant is blind, deaf, mute or of juvenile age the court has to mandate a lawyer with representing the accused during the trial procedure. Mandatory assignment of a lawyer is also demanded for by Art. 34 if there is a possibility that the defendant will be sentenced to death and if the accused is not yet represented by a lawyer. Art. 35 spells out the tasks of a defence council. According to this provision the lawyer has to bring forward – on the basis of the law and the facts – material and views of the case that provide for evidence that the accused is not guilty or that the offence is of a minor nature or prove that criminal responsibility is diminished or completely excluded and which maintain the statutory rights and the legal interests of the suspect/accused. In fulfilling these tasks the lawyer has according to Art. 36 the right to access the case files from the day the prosecutor has received the case file from police in order to decide on the indictment. The lawyer from this time on has also the right to visit the detained suspect/accused and to communicate with him in other ways.

In general, Art. 37 grants the lawyer the right to interview witnesses and other persons (if these persons or witnesses consent) and furthermore, the lawyer may apply at the court or at the public prosecutors office to collect further evidence or to summon witnesses. Art. 96 then grants the suspect the right to mandate a defence council after the first interrogation by law enforcement authorities or from the day on a coercive measure has been carried out during criminal proceedings. From this time on the lawyer may give legal advice to the defendant, appeal against decisions and to file applications. For a detained client the lawyer may seek release on bail. If the case involves state secrets, however, the investigating authority has to approve representation by a lawyer. The lawyer has then also the right to be informed about the suspected offence. He has the right to visit a detained client und to interview the client about the case. The investigating authority may – dependent on the circumstances of the case – send an officer to be present during the visit. Also, in case of state secrets the investigating authority has to approve a visit of a detained suspect.

After the court of first instance has opened the trial phase, latest 10 days before the trial starts, the indictment has to be delivered to the accused and the accused has to be informed that he has the right to be represented by a lawyer (Art. 151). In case of mandatory defence according to Art. 34 a defence lawyer has to be appointed by the court.

During the trial the defence council has in principle the right to examine witnesses and the accused; putting questions to witnesses and the accused, however, is dependent on the approval of the presiding judge. In case of evidence that is presented to the court the lawyer must be heard (Art. 157). The lawyer has also the right to motion for new evidence (Art. 159). But, according to Art. 159, the court decides on such motions without being restrained in rejecting motions placed by the defence lawyer through statutorily determined grounds which would allow refusal of motions seeking introduction of new evidence.

The Chinese law is still rather restrictive as regards the mandatory assignment of a defence council. The mandatory assignment of a defence council applies at a rather late stage of criminal proceedings, latest ten days before the trial will commence. Similar rules can be found in the European Convention on Human Rights (Art. 6, 3c) as well as in the German criminal procedural law (§140, 141). In Art. 6, 3c ECHR the right to have criminal defence is restricted to the accused, however, the term “accused” includes pre-trial proceedings from the time the defendant was informed by a competent authority that he is suspected having committed a crime[62]. German law provides for “necessary defence” only after the indictment has reached the court. This, however, means that the suspect - if the financial situation does not allow mandating a lawyer at the cost of the suspect - will be without defence during the whole phase of criminal investigation and thus in a precarious position as the results of the trial itself are predetermined by the investigative stage of criminal proceedings [63]. During the investigative stage of criminal proceedings the need to be defended is certainly significant, in particular when the trial rules allow the introduction of evidence collected during the investigative stage through reading out statements of witnesses. With Art. 96 Chinese Criminal Procedural Law, the role of the defence council has been considerably upgraded and moved towards international standards[64]. However, the power of investigating authorities to monitor communication between defence lawyer and client reduces the capacity of the defence council to act in the clients interests and thus prevents the implementation of the “equality of arms” standard and ultimately also effective criminal defence[65]. During trial – and in particular seen from the move away from the inquisitorial process towards the adversarial trial – the superior position of the public prosecutor (and the presiding judge as well as the court committee) prevents evenly that the defence lawyer may play a role which is equal to the role of prosecution[66].