DISSENTING OPINION OF JUDGE PINTO DE ALBUQUERQUE JOINED BY JUDGE SAJÓ

Table of contents

I. Introduction (§§ 1-3)

First Part – The majority’s pro auctoritate approach to the case (§§ 4 ‑ 54)

II. The groundless margin of appreciation (§§ 4-12)

A. The “better placed” argument (§§ 4-9)

B. The self-restrained Court (§§ 10-12)

III. The factors that delimit the margin of appreciation (§§ 13-32)

A. Distorting the European consensus (§§ 13-20)

B. Fragmenting international law (§§ 21-32)

IV. The perversion of the margin of appreciation (§§ 33-54)

A. The review of the general blanket prohibition (§§ 33-45)

B. The review of the decision taken in the present case (§§ 46-54)

Second Part – A pro persona approach to the case (§§ 55-80)

V. The Court’s relevant case-law (§§ 55-61)

A. The unclear legacy of Croissant (§§ 55-59)

B. The “necessary in the interests of justice” test (§§ 60-61)

VI. A self-standing right under the Convention (§§ 62-67)

A. The textual element of interpretation (§§ 62-64)

B. The teleological element of interpretation (§§ 65-67)

VII. A non-absolute right under the Convention (§§ 68-80)

A. The systematic element of interpretation (§§ 68-76)

B. The application of the Convention standard to the case (§§ 77-80)

VIII. Conclusion (§§ 81-82)

I. Introduction (§§ 1-3)

1. I cannot join the majority, because I find that the respondent State violated the applicant’s right to conduct his own criminal defence, which is enshrined in Article 6 § 3 (c) of the European Convention on Human Rights (“the Convention”). My dissent has two parts.

2. In the first part, I analyse the reasoning of the majority, with special attention to its over-reliance on the margin of appreciation doctrine. Even if a margin of appreciation were to be conferred in the present case, the factors that the majority claim to be taking into account to define it (international law and the European consensus) should have prompted them to find that this margin was very narrow indeed. The last section of my critique focuses on the way the margin of appreciation operates in the present judgment, the serious factual errors which vitiate its respective findings and the deficient review standards applied to the reasons provided for the existing general blanket prohibition in Portuguese law and the concrete prohibitive decision taken in the present case.

3. In the second part, I sketch the contours of the right to self-representation in criminal procedure under the Convention. First, I analyse the relevant case-law of the European Court of Human Rights (“the Court”) on this topic. Then, I argue that the right to self-representation in criminal procedure is a self-standing, non-absolute right within the framework of the Convention for textual, teleological and systematic reasons. At this juncture, elements of comparative criminal procedure, international criminal law and international human rights law are discussed in the opinion in order to conclude that the right to self-representation may be restricted when there are adequate and sufficient reasons for doing so. Finally, I apply this standard to the case at hand.

First Part – The majority’s pro auctoritate approach to the case (§§ 4 ‑ 54)

II. The groundless margin of appreciation (§§ 4-12)

A. The “better placed” argument (§§ 4-9)

4. The majority devote a lot of argumentative effort to trying to show that the respondent State had a margin of appreciation in designing its procedural system and that the provision in issue [4] did not exceed that margin. I find this whole line of reasoning deficient. The majority confer a margin of appreciation on unsound grounds, fail to delimit the scope of such margin and, lastly, do not perform an evaluation of the reasons underlying the State’s restriction of the right to self-representation. I will address these points successively.

5. If a margin of appreciation is to be recognised, there should be a strong reason for doing so. There has to be a reason why the Court considers that domestic authorities will perform some kind of assessment better than the Court itself. As the sole ground for justifying the margin of appreciation, the majority affirm:

“the decision whether to allow an accused to defend himself or herself in person without the assistance of a lawyer or to 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”. [5]

Although it does cite two previous Court authorities referring to self ‑ representation, [6] this assertion is in any event insufficient to fully support the effects to which it lays claim.

6. This Court has said on numerous occasions that domestic authorities are “better placed” (or “in a better position”) than the Court to make certain assessments of facts or law. Already in Handyside , while discussing restrictions imposed by obscenity laws on freedom of speech, the Court famously stated:

“By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of [the requirements of morals] as well as on the ‘necessity’ of a ‘restriction’ or ‘penalty’ intended to meet them”. [7]

7. The phrase has become pervasive ever since and it is indeed sometimes used in connection with the conferral of a margin of appreciation. However, it should not be mistaken for carte blanche to rubber-stamp any policy adopted or decision taken by national authorities. Indeed, an overview of the usage of the phrase in the Court’s history shows that when the Court has found domestic authorities to be “better placed” than itself, it has usually said why this is so. The absence of any explanation of the sort by the majority in the present case suggests that the utilisation of the margin of appreciation in the judgment is unwarranted. An exhaustive review of the Court’s case-law will demonstrate this.

8. Most of the cases in which the Court has found domestic authorities to be “better placed” than itself to make certain assessments involve broader policy questions. The Court’s formulaic statement is that domestic authorities, by reason of “their direct and continuous contact with the vital forces of their countries”, are in principle “better placed than an international court to evaluate local needs and conditions” when it comes to the following four areas: moral, ethical and religious issues (a); use of public force and other punitive or preventive measures (b); public resources and expenditure (c); and the societal organisation of property, environment and migration (d). These are the specific issues included in the mentioned four areas:

a. “the requirements of morals”, “sensitive moral or ethical issues” or “social issues on which opinions within a democratic society may reasonably differ widely”, such as obscenity, [8] blasphemy, [9] adoption by homosexuals, [10] national language, [11] “questions concerning the relationship between State and religions” (for example, the use of veils or religious symbols in public places), [12] marriage, [13] hunting, [14] abortion [15] , assisted reproduction [16] and incest; [17]

b. “responsibility for the life of the nation”, in particular choices as to the presence of a public emergency, [18] “complex issues and choices of social strategy”, such as choices concerning penal and prison law, [19] criminal procedure, [20] and other punitive or preventive measures to respond to “the difficulties faced in establishing and safeguarding the democratic order”; [21]

c. “social and economic policies” such as social housing, [22] specially protected tenancies, [23] health care, [24] State pensions and social-insurance benefits, [25] tax policy, [26] “laws to balance State expenditure and revenue” (so-called “austerity measures”), [27] and in general “any assessment of priorities in the context of the allocation of limited State resources”; [28] and

d. “matters of general policy”, such as “measures of deprivation and restitution of property [29] and “measures to be applied in the sphere of the exercise of the right of property”, [30] housing control, [31] urban and regional planning, [32] access of disabled people to public buildings, [33] environmental issues, [34] and migration matters. [35]

9. Domestic authorities have also been found to be “better placed” than the Court or even “best placed” when assessing evidence [36] (for example, evidence on an applicant’s state of health), [37] and interpreting domestic legislation, [38] treaty law in general [39] and European Union law in particular, [40] a private contract, [41] and a person’s will. [42] By extension, the same presumption in favour of the domestic authorities is valid when they engage in assessments of interrelated facts and domestic law, for example when deciding whether an individual judge is able to sit in a particular case, [43] or assessing the need to restrict conduct by a member of Parliament causing disruption to the orderly conduct of parliamentary debates, [44] the suitability of alternative accommodation for an individual, [45] the prejudice caused to the applicant by non-disclosure of public interest immunity evidence, [46] the need for further detention of the applicant, [47] the conformity of the execution of judgments, [48] the “appropriate compensation” for expropriation or other damage, [49] the “appropriate response” to unlawful speech, [50] the best interests of a child [51] or the appropriate measures to maintain family ties. [52]

B. The self-restrained Court (§§ 10-12)

10. In view of the above, it is stating the obvious to say that there is no other fundamental rights court in the democratic world with such a self-restrained Kompetenz-kompetenz . As shown above, the Court does not feel at ease adjudicating in important areas of social life. As well as their “contact with the vital forces of the country”, the “better position” of the domestic authorities has also been grounded in something as political as “direct democratic legitimacy”, [53] as mundane as the knowledge of national language [54] or as philosophical as the “nature of things.” [55] This is not the place to analyse the deference rationale underlying this self-imposed minimalistic approach to judicial power as if international judicature were a lesser kind of judicature and international law a lesser kind of law.

11. For the purposes of the present case, it suffices to identify the origins of this line of case-law, its intimate relationship with the margin of appreciation doctrine and its practical impact on limiting core adjudicatory functions of the Court, and therefore its statutory task of “ensur[ing] the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols”. [56] In particular, this approach has been observed in cases in which “a balance has to be struck” between conflicting private interests, [57] between opposing private and public interests [58] or between competing public interests. [59] In these cases, it is usually noted, domestic authorities are better placed than the international judge to assess the existence of a “pressing social need” [60] that would justify restrictions on, and even derogations from rights. [61] Being conspicuously pragmatist and purposely minimalist, the Court does not even announce that it may split the baby in the manner of Solomon when presenting the case. It dooms the applicant’s case from the outset, by either endorsing a priori the national authorities’ position or at least presuming its rationality (non-arbitrariness), or even its proportionality. [62]

12. Be that as it may, none of the situations that allegedly make domestic authorities better placed than the Court obtains in the present case and the majority do not argue, let alone demonstrate, why this should be so. To state telegraphically in paragraph 123 of the judgment that the national authorities “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” assumes what is still to be demonstrated: that the national authorities have made the correct, the “appropriate” choice of means to guarantee the rights of the defence. This circular pro auctoritate reasoning reflects the general perspective from which the present case was approached. Once again, the maxim of experience proves to be right: a self-restrained fundamental rights court tends to be a pro auctoritate court. [63] The obvious risk is that judicial self-restraint in the field of fundamental rights morphs easily into agnosticism as to principles and values, political indulgence and, ultimately, abdication of judicial responsibility.

III. The factors that delimit the margin of appreciation (§§ 13-32)

A. Distorting the European consensus (§§ 13-20)

13. Before entering into the terrain of the “Limits on the margin of appreciation”, the majority set the stage for their analysis. They affirm:

“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”. [64]

It would seem that, according to the majority, the European consensus and international law on the matter are to provide guidance on the “limits” for the margin of appreciation. However, the analysis that follows concludes:

“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 ... However, ... those standards are not determinative”. [65]

14. This “non-determinative” character is puzzling: as demonstrated below, both the European consensus and the developments in international human rights law run counter to the majority’s findings. If neither of those factors was in fact “determinative” in defining the “limits” of the margin of appreciation, we are left to wonder what can be determinative. To add to the obscurity of the majority’s reasoning, the reader is left without a clue about the width of the margin of appreciation accorded to the respondent State, since the majority do not give a hint about how wide this margin is.

15. The majority start by announcing that “regard” is to be had to the ways Contracting States have dealt with the issue at hand. [66] Then they claim that they have found a “tendency to permit the accused’s defence in person without assistance by counsel”. [67] The majority explicitly refrain from calling this “tendency” a “consensus”:

“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.” [68]

This assertion is both descriptively and normatively wrong.

16. First, it suffices to look at the reconstruction that the majority themselves make of the law of member States to appreciate how strong this “tendency” is, and to wonder whether it would not be more appropriate to actually call it a consensus. Among the thirty-five States the Court surveyed, thirty-one [69] allow self-representation as a general rule. All of the remaining four, even though they establish mandatory legal counsel as a general rule, allow for sensible exceptions. In Italy and Spain, self-representation is allowed for minor offences. In San Marino, the accused is allowed to plead appeals for him or herself. In Norway, finally, judges are allowed to make a “holistic assessment” to allow a criminal defendant to waive his or her right to legal counsel. [70]

17. While it is true that the domestic practices in these States “var[y] considerably”, there is one aspect that remains stable: none of the thirty-five member States surveyed impose a blanket prohibition on self-representation the way Portugal does. Whether this is enough to call it a consensus, or whether we should also check the practice of the remaining eleven member States, is anecdotal. The fact is that there is a strong indication that Portugal’s blanket prohibition is an outlier within the Council of Europe.

18. Calling it a “tendency” rather than a “consensus”, and thus pretending to wash away the effects of the large coincidence amongst countries within the Council of Europe, borders on wishful thinking. A lack of unanimity is not a barrier to assigning normative consequences to comprehensive transnational coincidences; whether or not to use the term “consensus” has never been paramount in the Court’s history. In a subject as contentious as the legal recognition of perceived gender, the Grand Chamber overruled a previous precedent in the face of a “continuing international trend in favour of legal recognition ... of the new sexual identity of post-operative transsexuals”. [71] It should be pointed out that on this topic the Court noted that “out of thirty-seven countries analysed only four (including the United Kingdom) did not permit a change to be made to a person’s birth certificate”. [72] The numbers are almost identical to the instant case, although they led to quite different conclusions. One is left to wonder why Portugal is being treated differently from the United Kingdom. [73]

19. A more suggestive quotation arises from Bayatyan v. Armenia , in which the Court noted:

“almost all the member States of the Council of Europe which ever had or still have compulsory military service have introduced alternatives to such service in order to reconcile the possible conflict between individual conscience and military obligations. Accordingly, a State which has not done so enjoys only a limited margin of appreciation and must advance convincing and compelling reasons to justify any interference. In particular, it must demonstrate that the interference corresponds to a ‘ pressing social need’.” [74]

In yet another case, the Court gave special consideration to the fact that

“legislative attempts to eliminate entirely the use of closed-shop agreements in Denmark would appear to reflect the trend which has emerged in the Contracting Parties”, [75]

which was one of the main factors that led it to conclude:

“taking all the circumstances of the case into account and balancing the competing interests in issue, the Court finds that the respondent State has failed to protect the applicants’ negative right to trade union freedom”. [76]

20. In conclusion, by imposing a blanket ban on self-representation, Portugal is the sole outlier among the thirty-six countries that this Court has examined. I would not hesitate to call this a consensus, but this terminology is unsubstantial: in similar cases, the Court has consistently recognised findings of this kind as, at least, a significant “trend”, with normative consequences. Moreover, self-representation does not seem to be a matter that could “give rise today to sensitive moral and ethical issues” or one that is subject to “fast-moving scientific developments”, where the Court could possibly have reasons to be more cautious about extending the consensus to recalcitrant States. [77] In such cases, strong democratic support for a solution that runs counter to a European trend has been invoked as a solid ground for granting the country concerned a broader margin of appreciation. [78] No claim that this is one such case, or that Portuguese lawyers are somehow special regarding legal representation needs, has been made.

B. Fragmenting international law (§§ 21-32)

21. The other factor that the majority claim to have taken into consideration relates to “the developments in international law”. [79] They observe:

“when interpreting the provisions of the Convention, [the Court] has had regard, on a number of occasions, to the Views adopted by the HRC and its interpretation of the ICCPR.”

Furthermore, they tell us:

“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.” [80]

Indeed, the majority cite important examples of effective convergence between the Court’s case-law and general international human rights law, even to the point of departing from previous case-law. [81] In spite of all this, the majority in fact pay lip service to their alleged commitment to harmony in international law.

22. As important as these quotations may be as a declaration of principle, they are void if unaccompanied by either effective consistency with the solution adopted by other human rights bodies such as the Human Rights Committee (“the HRC”), or by the provision of strong reasons why the Court has decided not to join its colleagues in the international realm. Unfortunately, the majority remind us of the HRC’s General Comment No. 32, [82] only to explain why it should not be followed in this case; the explanation given is clearly insufficient. It is illustrative that this General Comment draws on the HRC’s Views on a previous case which the same applicant had brought before this Court and which, once his application was found to be inadmissible, he took to the HRC. [83]

23. Let us recall what the HRC affirmed:

“[T]he wording of [Article 14.3.d of] the Covenant is clear in all official languages, in that it provides for a defence to be conducted in person ‘or’ with legal assistance of one’s own choosing, thus providing the possibility for the accused to reject being assisted by any counsel. This right to defend oneself without a lawyer is, however, not absolute. The interests of justice may, in the case of a specific trial, require the assignment of a lawyer against the wishes of the accused, particularly in cases of persons substantially and persistently obstructing the proper conduct of trial, or facing a grave charge but being unable to act in their own interests, or where this is necessary to protect vulnerable witnesses from further distress or intimidation if they were to be questioned by the accused. However, any restriction of the wish of accused persons to defend themselves must have an objective and sufficiently serious purpose and not go beyond what is necessary to uphold the interests of justice. Therefore, domestic law should avoid any absolute bar against the right to defend oneself in criminal proceedings without the assistance of counsel.” [84]

24. There is no ambiguity in the HRC’s words. When interpreting a provision substantially identical to Article 6 § 3 (c) of the Convention, the HRC affirmed that there was a right to self-representation, which could be restricted with good cause and to the minimum extent possible to uphold the interests of justice, and emphasised that absolute bars such as the Portuguese one should be avoided. As this is the only source in international law that the majority cite on the issue sub judice , [85] the majority judgment runs purposely counter to the “developments in international law”.

25. The Court’s long-standing practice, however, is more international law-friendly than the majority’s opinion would suggest. In Scoppola v. Italy (no. 2) , [86] for example, an international consensus prompted the Court to explicitly depart from a previous decision of the Commission. In X v. Germany the Commission had declared that Article 7 of the Convention did not include the right to retroactivity of benign criminal law. [87] In Scoppola , the Court explicitly departed from that conclusion, taking the view that in the light of a “consensus” in international human rights law that had emerged after the adoption of X v. Germany ,

“ it is necessary to depart from the case-law established by the Commission in the case of X v. Germany and affirm that Article 7 § 1 of the Convention guarantees not only the principle of non-retrospectiveness of more stringent criminal laws but also, and implicitly, the principle of retrospectiveness of the more lenient criminal law” . [88]

In Bayatyan v. Armenia , the Court also expressed similar considerations in order to justify a departure from its previous case-law concerning the applicability of Article 9 to conscientious objectors, which had been the subject of divergent solutions by the Commission and organs such as the HRC. The Court now said:

“Since it is first and foremost a system for the protection of human rights, the Court must have regard to the changing conditions in Contracting States and respond , for example , to any emerging consensus as to the standards to be achieved ... Furthermore, in defining the meaning of terms and notions in the text of the Convention, the Court can and must take into account elements of international law other than the Convention and the interpretation of such elements by competent organs”. [89]

I note that in both cases the Court’s language was distinctively imperative, acknowledging that the development of international law had necessarily triggered the change in the Court’s case-law.

26. As can be seen from these cases, it has been the firm practice of this Court not only to align with the HRC, but also to do so even when such an alignment implied a departure from previous case-law. As was noted in Bayatyan , changes in the Court’s case-law arising from shifts in the international consensus cannot be considered unforeseeable for the States Parties to the Convention, especially when those States are themselves also parties to the International Covenant on Civil and Political Rights (ICCPR), [90] as Portugal is in the present case.

27. The majority claim that “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 does not always correspond”. [91] One sole example is cited. The majority say that, unlike this Court, which holds that “where [appeal and cassation] courts exist, the guarantees of Article 6 must be complied with, for instance by guaranteeing litigants an effective right of access to court”, the HRC has found that the right of access to court under Article 14 § 1 of the ICCPR “does not address the issue of the right to appeal”. [92] This is not convincing, for many reasons.

28. First, the majority overestimate the extent to which the HRC and the Court have indeed disagreed on this subject. In one of the cases the majority quote, the Court found no violation of Article 6 on account of the restrictions that Spanish procedural law placed on the right to appeal. [93] In the other case cited by the majority, the Court did find a violation of Article 6 because the applicant was not allowed to be present at her cassation hearing, and not simply because she was not allowed to appeal. [94] What the Court has consistently held is that if a State sets up courts of appeal or cassation, it is “required to ensure that persons amenable to the law shall enjoy before these courts the fundamental guarantees contained in Article 6”. [95] This means that there is no “right to appeal” as such, but a right to enjoy Article 6 guarantees during the entirety of the proceedings: not being arbitrarily deprived of a right to appeal that is statutorily established, not suffering from inequality of arms at a higher stage of the proceedings, and so on. Once read in this way, the case-law of this Court on the matter is hardly contradictory with that of the HRC.

29. Indeed, the HRC has simply stated:

“The right of equal access to a court, embodied in article 14, paragraph 1, concerns access to first instance procedures and does not address the issue of the right to appeal or other remedies.” [96]

Nothing in this wording suggests that individuals do not enjoy Article 14 ICCPR rights in appeal proceedings and that, for example, the HRC would allow States to grant the right to appeal in a discriminatory manner and regulate it in an arbitrary manner. Moreover, a reading of the HRC’s Views on Communication No. 450/1991 ( I.P. v. Finland ), which the HRC cites as the immediate source of the above quote, shows that the majority should have been more cautious when reading into the HRC’s intentions. In those Views, the HRC stated:

“As for the author’s claim that he was denied the possibility of appeal, even were these matters to fall within the scope ratione materiae of article 14, the right to appeal relates to a criminal charge, which is not here in issue. This part of the communication is therefore inadmissible ...” [97]

As can be readily observed, all the HRC said is that the possibility of appeal in the tax proceedings in issue was not guaranteed by Article 14 of the ICCPR, a finding which is entirely consistent with the case-law of this Court. Moreover, the HRC was interpreting Article 14 § 5 of the ICCPR, which explicitly grants criminal defendants the right to appeal and which has no equivalent in the Convention. Furthermore, nothing in the author’s claims in I.P. v. Finland suggests that the right of appeal was denied to him in a discriminatory or arbitrary way. In sum, nothing in I.P. v. Finland suggests that the author would have received a different response had he come to this Court.

30. The majority’s misinterpretation of the HRC findings extends to another important point: the majority blame the HRC for not “explicitly address[ing] the Court’s reasoning in its decision of 15 November 2001 concerning application no. 48188/99”. [98] At least for the sake of international courtesy, if not of analytical rigour, it should be stressed that the majority’s statement is not entirely correct. The HRC decision of 26 March 2006 did indeed address the Court’s decision of 15 November 2001, and even explicitly referred to it in paragraph 3.2, as well as specifically addressing in paragraph 4.6 the central argument, put forward by the Court in 2001 and repeated by the Government in Geneva in 2006, that the applicant could not present a technical defence, but did have an opportunity to present a personal, non-technical defence.

31. It is also worth noting that General Comment No. 32 does not establish a hard line that would have forced the Court to perform unreasonable argumentative twists in order to be consistent with the rest of its case-law. Under a minimalist reading, General Comment No. 32 could be understood to only prohibit general bars on the exercise of the right to self-representation, thereby placing a burden on the State when restricting it. This could be supported by the use of the word “particularly” before the circumstances the HRC lists as allowing for such a restriction. The majority do not even attempt to engage in a dialogue with the HRC, for example arguing that this list should be enlarged, or its burden of proof be softened. In other words, the majority’s plea for fragmentation of international law is a regrettable development, in fact a retrogression, to which I cannot subscribe.

32. There is one final consideration that should not have been neglected in the majority’s reflections. Whereas the Court “shall not deal with any application submitted under Article 34 that ... is substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation...”, [99] the HRC cannot consider communications only when they are “being examined under another procedure of international investigation”. [100] That is to say, once the Court has pronounced its final decision or judgment concerning an application, unsatisfied applicants can bring their complaints before the HRC. The applicant has already done this in the past, and there is no reason to think he will not do it again. While this does not imply a hierarchical relationship between the two bodies, it does signal that the Court should be extremely careful when being less protective of fundamental rights than the HRC is.

IV. The perversion of the margin of appreciation (§§ 33-54)

A. The review of the general blanket prohibition (§§ 33-45)

33. The majority announce that the “relevant test” to be applied to find out whether the Portuguese authorities remained within their margin of appreciation consists of the following:

“the Court has to examine, first, whether relevant and sufficient grounds were provided for the legislative choice 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 for relevant and sufficient grounds for their decisions.” [101]

The majority consider, as I do, that both the general provision and its particular application should contain sufficient and relevant reasons to justify a restriction on the right of self-representation such as the one in the instant case. However, in my view they fail to show that the domestic authorities have indeed deployed such reasons.

34. The first stage of the majority’s assessment is to verify whether the legislative choice of mandating legal representation in all kinds of cases is justified:

“[The Court] 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 ...” [102]

35. However, the generality or specificity of rules is a matter of perspective. A rule allowing self-representation only for people with legal training, for example, is certainly more specific than the blanket prohibition in place in Portugal, but it is also more general than a rule that would only allow registered lawyers, or lawyers with experience in criminal procedure, to represent themselves. Logically, one cannot assess the net benefits of the generality of a rule if one does not identify the kinds of situations that remain over- or under-included by the rule; only then can one balance the benefits of generality against the potential unfairness of some of its applications.

36. It is clear that the factors to be taken into account to assess the possible over-inclusiveness of a rule are not always self-evident. However, in this case, the majority seem to have a precise idea of at least one relevant factor: it is the majority themselves who announce from the outset the opinion that “the thrust of the case before [the Court] concerns the scope of the right for defendants with legal training to defend themselves in person”. [103] In other words, and always following the majority’s reasoning, the general rule in need of justification in this case is not the general prohibition on self-representation in criminal procedure, but the rule that prevents defendants with legal training from representing themselves. Therefore, by their own account, what the majority should have evinced as a logically necessary consequence is that the domestic authorities considered either that there were good reasons for imposing legal counsel specifically on defendants with legal training, or that the benefits of having a more general rule against self-representation offset the potential harm to some of these defendants. They do neither.

37. Furthermore, the majority say that “[i]t falls to the Court to examine carefully the arguments taken into consideration during the legislative process” [104] and that “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”. [105]

38. They fail to fulfil what they promise. In effect, rather than a thorough examination of the reasons given during the debate, what we find is a very synthetic enumeration of some of the legislative steps through which the CCP went. If an assessment of the “quality of the parliamentary ... review” [106] is to mean anything, it has to mean that what should be reviewed is the quality of the debate that actually took place – as opposed to an assumption of the reasons that may have existed, but were not, in fact, uttered.

39. In fact, when the Court in the past has evaluated the quality of the parliamentary review to confer a wider margin of appreciation, it has studied the actual debate. As a consequence, in cases in which Parliament had in fact weighed the competing interests at length, more deference was shown to the State, [107] but, on the contrary, when no such explicit weighing of those reasons had occurred, a negative inference was drawn in respect of the domestic decision. [108]

40. Nothing of the sort is done in the majority judgment. All we find is a general reference to the preamble of the CCP and point 2 of section 3 of Law no. 43/86 to the effect that some provisions were “aimed at reinforcing the legal position of the accused and ensuring effective equality of arms” and that “measures which could prejudice the accused’s personal dignity should be prevented”. [109] An additional mention is made of the existence of three legislative proposals in 2007. That is all. There is no evidence that the right to self-representation was actually taken into consideration when weighing the interests at stake in a Code that is over 500 Articles long, and less still that special consideration was given to defendants with legal training – the universe of cases that the majority consider to be relevant. Had the majority taken the trouble to read the relevant travaux préparatoires [110] they would have had to conclude that there was no such evidence, for the simple reason that there was no such debate.

41. Proceduralisation of human rights law is a laudable added value in so far as it complements substantive justice, but an irresponsible abdication of the Court’s supervisory powers when it replaces the latter. [111] While this is a careful line to tread, the majority’s suggested approach is to see procedural justice as an alternative (not a complement) to substantive European supervision. This transforms the national decision-making procedure into a fetish and the Court into an agnostic as to outcomes, ignores the fact that unfair outcomes may result from faultless national decision-making procedures and ultimately leads to a reduced level of standard-setting. [112]

42. In the present case, the proceduralisation of the margin of appreciation promotes unwarranted formalism and window-dressing. The majority cut some corners here. This approach to the legislative debate is highly problematic, to say the least. It is one thing to consider that the Court can look at the intensity and quality of parliamentary debate or other forms of domestic procedures to look for indicia of the “necessity” of a restriction of a Convention right. But it is quite another thing to replace the protection of rights with mere rubber-stamping of parliamentary proceedings. Hardly any law enacted by any parliament in any circumstance would fail to pass the extremely low standard the majority are applying to the review of parliamentary proceedings. If this examination is all it takes to release member States from their duties, the margin of appreciation will, in practice, always be unlimited.

43. More gravely, the majority wrongly assume that the accused had a right to submit observations, statements and requests “in which he could address questions of law and facts” [113] . With regard to questions of law, this statement is simply false. Questions of law in observations submitted by a defendant, even with a legal background, are simply ignored in Portuguese courts. In fact, the applicant, like any other defendant, was barred in absolute terms from presenting his own technical defence. He had to be assisted by counsel during all the procedural steps in which he was involved. Under Article 302 §§ 2 and 4 of the CCP, only defence counsel has the opportunity to request the taking of additional evidence by the investigating judge and to summarise his or her own conclusions as to the sufficiency of the evidence gathered and the questions of law which arise. [114] Under Article 360 § 1 of the CCP, only defence counsel is given the floor by the trial 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. [115] Under Article 98 § 1 of the CCP, the applicant could submit notes, written pleadings and requests at any stage in the proceedings without his defence lawyer’s signature. [116] But he could not conduct “his own technical defence”, which means that he could not raise or discuss any legal issue. This is the well-established case-law of the Supreme Court and the courts of second instance and the reason for that is the following: “the right of petition is not designed to enable the accused to take the place of his or her lawyer”. [117] Amazingly, the majority themselves cite, in paragraphs 57 and 148 of the judgment, jurisprudence of the Supreme Court which contradicts the statement of the majority in paragraph 156.

44. But this is not even the only false statement on the facts. The majority refer to the examination of the mandatory representation of defendants “in almost all criminal proceedings”. [118] This is again a serious misrepresentation of national law and case-law. The majority themselves cite, in paragraphs 37 and 57 of the judgment, the case-law of the Supreme Court according to which a lawyer may “never” represent himself in criminal proceedings and the provisions authorising judges and lawyers to represent themselves before courts are purely and simply “inapplicable in criminal cases”.

45. These are not clerical errors. These are false representations of decisive elements in the majority’s reasoning. These are statements for which the Court bears sole responsibility and which cannot be imputed to the parties, quite simply because they never put forward such arguments. Neither the applicant nor the Government ever argued that defendants could conduct their own technical defence and submit observations on legal aspects. In fact, they both argued precisely the opposite, in a crystal-clear, concordant way. [119] In any court of law worthy of the name, errors of this calibre would be a sufficient reason to consider the judgment null and void for being based on false representations with a decisive influence on the findings. Rule 80 of the Rules of Court is designed precisely for these types of serious errors. Only this legal avenue can remedy the above-mentioned errors regarding Portuguese law and case-law which, for the purposes of Rule 80, must be regarded as decisive factual elements. [120]

B. The review of the decision taken in the present case (§§ 46-54)

46. After having found “relevant and sufficient grounds” for the blanket prohibition on self-representation, the majority promise to “examine, in the context of the overall assessment of the criminal proceedings, whether the domestic courts, when applying the impugned rule, also provided relevant and sufficient reasons for their decisions”. [121] The majority do not fulfil this promise either.

47. In order to “examine the quality of the judicial review” [122] in the present case, the majority cite some domestic judicial decisions relating to defendants other than the applicant. The majority cite case-law of the Portuguese Supreme Court in which it “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”, such as “the need to provide for the dispassionate conduct of a case”, “the need to ensure that the accused had technical assistance” and the “tension between the status of an accused person and the responsibilities of defence counsel” . [123]

48. However, none of the decisions cited were delivered in the applicant’s case. It is the majority themselves who add that the Court “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”. [124] This is, by the way, the only line in which the majority consider why a lawyer should not be allowed to conduct his or her own defence, an issue which is nevertheless “the thrust of the case”. [125] In any event, all the decisions taken by the domestic courts in the instant case [126] are rather an extension of the in abstracto analysis of the legislation, not an in concreto analysis of the particular circumstances of the applicant’s case, for the simple reason that the domestic courts could not exercise any discretion so as to avoid any disproportionality in a particular case. [127]

49. It is patent, from the summary of the facts set out in the judgment itself, that the domestic courts gave no relevant and sufficient grounds as to why the applicant could not be permitted to represent himself. The majority, however, attempt to replace the domestic courts in the assessment of the particular circumstances of the case. For example, the majority say that the general grounds for the ban on self-representation “appl[y] even more forcefully where, as here, a defendant was suspended from the Bar, was not therefore a duly registered lawyer ... and had already been charged with insulting a judge”. [128] Maybe these reasons could have been relevant to forbid the applicant to represent himself, but there is no indication in the “Facts” part of the judgment that these were actually the reasons why the applicant was prevented from doing so in the present case. The domestic courts said nary a word about these facts. It is not this Court’s job to assess these facts per se , as a court of first instance. Hence, I will refrain from second-guessing what the domestic courts could have been thinking, and so should the majority have done.

50. A similar pattern arises when the majority come to analyse the consequences for the “overall fairness” of the trial of the applicant’s inability to represent himself. The majority make a series of assumptions and inferences that the domestic courts themselves did not make. For example, the majority consider it important that the applicant “does not appear to have challenged the qualifications or quality of the court-appointed lawyer”. [129] Of course, the negative, dubitative wording “does not appear” is used only because the majority cannot be sure of an assessment that the domestic courts did not make.

51. Also, when assessing the effects of the “overall fairness” of the proceedings, the majority make contradictory assertions that show how difficult it is to replace the domestic courts when evaluating the reasons for which a decision was taken. The majority say that 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”. [130] Immediately afterwards, they contend that “the mere fact that [the court-appointed lawyer] 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.” [131] This was evidently not a “mistake”: it was a choice by the court-appointed lawyer. It reveals nothing less than a disagreement between the applicant and the court-appointed lawyer regarding the legal strategy to be pursued, which indeed rendered the applicant “unable to present ... his own interpretation of the relevant legal provisions” to the Constitutional Court. This choice of the court-appointed lawyer not to endorse the applicant’s constitutional appeal is at the heart of the applicant’s complaint that he could not discuss his own interpretation of the relevant legal provisions, because he was not allowed to put forward his own technical defence.

52. The gravest of things is that this happened not once, as the majority say, but twice, because the applicant’s appeal against the final judgment was also declared inadmissible, owing to the lack of a signature by the court-appointed lawyer. [132] The applicant was also unable to present his own interpretation of the relevant legal provisions to the court of appeal.

53. Finally, the most unfortunate stylistic device is used to present the applicant as a troublemaker who “lacked the objective and dispassionate approach considered necessary under Portuguese law to effectively conduct his own defence”. [133] To make the finding of the domestic courts seem “not unreasonable”, the majority invoke the applicant’s criminal record and chastise his behaviour as “a repeat offence, which could have led to a custodial sentence of four months and fifteen days” and which “cannot be considered as minor”, [134] omitting to mention that the offence with which he was charged was punishable, alternatively, by a mere 180 day-fines. [135] This knife-sharpening language, which serves the purpose of putting forward a derogatory image of the applicant, is inadmissible. It goes beyond everything that the domestic courts ever said about him. If this stylistic device is intended to turn the soundbite-hungry reader against the applicant, it fails to do so. As already mentioned, nowhere in the domestic courts’ decisions are these facts established with regard to the applicant. [136] Nowhere in the “Facts” part of the judgment of this Court are these alleged “considerations” of the domestic courts to be found. What this device actually reflects is a drafting technique liable to result in a first-hand, direct personality assessment of the applicant, which unfairly stacks the deck against his case.

54. As I see it, the Government did not provide “relevant and sufficient grounds” either for having prevented the applicant from representing himself or for the general rule entailing that prohibition. The majority not only fail to show the domestic authorities’ reasons, but also make an inappropriate, and failed, attempt to replace them with their own reasons, as if they were a first-instance court.

Second Part – A pro persona approach to the case (§§ 55-80)

V. The Court’s relevant case-law (§§ 55-61)

A. The unclear legacy of Croissant (§§ 55-59)

55. Having rejected the majority’s approach, I present forthwith my own view of the case, starting with an analysis of the pertinent Strasbourg case-law. Article 6 § 3 (c) provides that everyone charged with a criminal offence has the “minimum right” to “defend himself in person or through legal assistance of his own choosing”. According to an old precedent of the Commission, this disjunction is for the State to solve:

“the Commission held that Art. 6 (3) (c) guarantees that proceedings against the accused will not take place without an adequate representation for the defence, but does not give the accused the right to decide himself in what manner the defence should be assured. 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 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.” [137]

56. The majority hesitate between consolidating this “disjunctive” reading of Article 6 § 3 (c) [138] and discarding it:

“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”. [139]

57. Only one of the cases that the majority cite dealt with an absolute bar on self-representation: the Correia de Matos inadmissibility decision. [140] In all the other cases cited by the majority, the provision on mandatory legal assistance was not an absolute one, but one that depended on the circumstances of the case.

58. In Croissant , the Court stated:

“The requirement that a defendant be assisted by counsel at all stages of the Regional Court’s proceedings (Article 140 of the [German] Code of Criminal Procedure ...) – which finds parallels in the legislation of other Contracting States – cannot, in the Court’s opinion, be deemed incompatible with the Convention.” [141]

In spite of the apparently general terms in which this statement is made, two considerations should be given particular weight. [142] Firstly, the applicant in the German case enjoyed the legal assistance of two defence counsel of his own choosing, but objected to the assignment of a third counsel by the court against his will. He did not object to the court’s appointment of counsel as a general matter, but only to the appointment of a third lawyer, which he considered unnecessary. On the contrary, the Court found that there was “relevant and sufficient justification” for the domestic court to appoint the third lawyer, having regard to the grounds of the domestic decision: the subject-matter of the trial, the complexity of the factual and legal issues involved and the defendant’s personality. [143] Secondly, and more importantly, the German Code of Criminal Procedure established, and still establishes, self-representation as a general rule, to which the cases of mandatory legal counsel listed in Article 140 are an exception. Hence, the Court should not rush into precipitate conclusions, as it did in the Correia de Matos inadmissibility decision, [144] on the right to self-representation on the basis of Croissant .

59. The same argument could be made regarding the two other cases of court-appointed counsel cited by the majority. In X v. Finland , a legal counsel (and guardian) was appointed because the Forensic Psychiatry Board deemed that the applicant was not able to conduct her own defence. [145] Furthermore, legal counsel in criminal proceedings was optional in Finland except in cases where there were special reasons. [146] Lastly, the decision of the Commission in Weber v. Switzerland [147] was also directed against a provision of the Geneva Code of Criminal Procedure that provides for mandatory legal counsel only in cases tried by a cour d’assises , against a general background of optional legal representation. [148]

B. The “necessary in the interests of justice” test (§§ 60-61)

60. Furthermore, if the Court has stated more generally that “a legal requirement that an accused be assisted by counsel in criminal proceedings cannot be deemed incompatible with the Convention”, it has qualified this statement with the proviso that the right enshrined in Article 6 § 3 (c) could be interfered with only in the presence of “relevant and sufficient grounds for holding that this is necessary in the interests of justice”. [149] Three main conclusions can be drawn from this crucial proviso. Firstly, the “relevant and sufficient grounds” for restricting the Convention right refer to the required reasons for a judicial “holding”. The choice of words is not anodyne. The key word in the sentence is “necessary”, which corresponds to the test to be applied in the judicial “holding”. The necessity test is an integral part of the proportionality test. [150] Secondly, when doing the balancing between the conflicting interests at stake, the interests of justice are to be put on one scale of the balance and the defendant’s choice of form of representation on the other scale. Thirdly, the proportionality test (which includes the necessity test) is an implicit, overarching limitation clause of both rights enshrined in Article 6 § 3 (c) of the Convention, the right to defend oneself in person and through legal assistance, no reason existing to treat the first limb of sub-paragraph (c) differently from the second limb in terms of the applicable implicit limitations.

61. In the light of the Court’s case-law, the majority consider that an “absolute bar” against self-representation “may ... be excessive”. [151] I would not qualify this assertion: an absolute bar is excessive, which in this context means that it is contrary to the Convention. I will show why there are literal, teleological and systematic reasons to recognise that the right to self-representation is a self-standing right in the structure of the Convention.

VI. A self-standing right under the Convention (§§ 62-67)

A. The textual element of interpretation (§§ 62-64)

62. Everyone charged with a criminal offence has the right to “defend himself in person or through legal assistance of his own choosing”. The text of Article 6 § 3 (c) defines one right (the right to defend oneself) with two possible means of exercising it (in person or through legal assistance). If these words are to mean anything, there has to be an element of choice in the sort of defence that criminal defendants are entitled to put forward. There has to be at least a category of cases in which a person is allowed to represent him or herself and reject legal counsel. This element of choice, of course, need not be absolute, and this Court has indeed found situations in which this choice was reasonably restricted. [152]

63. What cannot be argued is that Article 6 § 3 (c) is complied with whenever a person is allowed to defend himself or herself either in person or through legal assistance of his or her choosing. The right to self ‑ representation in criminal procedure is as unqualified as the right to legal assistance of one’s choosing, since it is not subject to any explicit limitation clause, as, for example, the right to legal aid is. No one would argue that the right to counsel would be satisfied if a State denied a person access to a lawyer but at the same time granted him or her the right to defend his or her own case. It would be hard to adhere to the strict disjunctive reading of Article 6 § 3 (c) in such a scenario. There is absolutely no grammatical reason to think differently of the first tenet of the Article, which is placed in a symmetrical position in relation to the second one. Otherwise, we would be reading “everyone has the right to defend himself unless he is being defended through legal assistance”, which is clearly not what the Convention says.

64. As a matter of strict textual interpretation, one has to go a step further. Three features of the provision at issue put the emphasis on the active role of the defendant in putting up a defence and making a choice with regard to the form of his or her representation. First, in Article 6 § 3 (c) the form of self-representation comes prior to that of legal assistance. Second, in the event of legal assistance, the person providing it is a mere agent of the defendant, assisting and not replacing him or her, and that is how the word “through” in the second part of the sentence can be more aptly interpreted. Third, the use of the active voice in the text stresses the active role of the defendant in choosing his or her defence strategy and his or her preferred form of representation.

B. The teleological element of interpretation (§§ 65-67)

65. Having said this, my understanding is not based exclusively or primarily on a literal argument, but on a teleological one: only an understanding of the right to self-representation as a self-standing right in the context of the Convention is consistent with the fundamental conception of the criminal defendant as a subject of the procedure, rather than its object. Such pro persona understanding of criminal procedure law, which is actually a legacy of Cesare Beccaria’s Dei Delitti e delle Pene and the subsequent Enlightenment revolution in the field of criminal procedure law, should have illuminated the reflections of the Court in the present case. [153]

66. In criminal proceedings underpinned by human dignity and the rule of law, the State must show the defendant, the victims and the wider society that what the defendant did is worthy of reproach. Prosecution can be seen as a procedure through which the State tries to explain and demonstrate that what a person did was contrary to the common rules of the community – and the action of the defence is the symmetrical counter-explanation, a person trying to show that in fact he or she did not do what the prosecution claims, or that what he or she did was not in fact contrary to the communitarian law.

67. The fact that these claims must be translated into the often arcane language of law should not obscure the dialogical character of the procedure or entail its expropriation from the defendant: the dialogue is, in principle, between the defendant and the State. This is recognised only by an understanding that, in principle, the defendant should not have anyone imposed between the State and himself or herself when engaging in the defence, and that he or she should be able to choose if he or she prefers to be assisted by someone who is presumably more competent in translating his or her assertions into the language of law. This teleological construction of the Convention flows easily from the above-mentioned three grammatical characteristics of the text at stake. On the basis of the harmonious textual and teleological elements of interpretation, one cannot but conclude that respect for the defendant’s autonomy as a legal subject is the lifeblood of Article 6 § 3 (c). The core of everyone’s right to defend himself or herself lies in the autonomy to choose his or her defence strategy free from undue State or other pressure and to take a free decision regarding the more convenient form of representation as part of that strategy. [154]

VII. A non-absolute right under the Convention (§§ 68-80)

A. The systematic element of interpretation (§§ 68-76)

68. The construction of Article 6 § 3 (c) proposed above looks all the more plausible when we pay attention to the legal landscape in which the Convention develops. [155] The practice of European States, of international human rights law and of international criminal law converges in recognising the right to self-representation in criminal procedure. I have already shown above how the fact that the majority call the extensive practice within the Council of Europe member States a “trend” rather than a “consensus” is inconsequential. I will briefly expand on the shape of this practice in the Council’s domestic jurisdictions to show how, regardless of this nominative disquisition, there is certainly a common ground from which Portugal departs.

69. The Court has examined the legislation in thirty-five member States other than Portugal. Thirty-one of them establish the right to self-represent as a general rule, while the other four, while establishing a general prohibition on self-representation, allow for significant exceptions to the prohibition. Portugal’s absolute bar on self-representation lies at the extreme of this spectrum. Certainly, many of the countries that allow for self-representation as a general rule also provide for significant exceptions. Ireland and Poland, indeed, are the only ones that do not provide any kind of exception to this right. In Malta, even if there are almost no situations of mandatory legal counsel as such, the courts would insist on the defendant accepting legal assistance. In the Republic of Moldova, even if mandatory legal counsel is provided for in some cases, the accused is normally allowed to ask for a voluntary waiver of this requirement, and such a request may be rejected by the judge or the prosecution.

70. Other countries are more precise in the exceptions to the right to self-representation. For example, nineteen [156] out of the thirty-one States that accept self-representation as a general rule would make exceptions according to the level or stage of jurisdiction. In general, the higher the court, the more likely there is to be some sort of obligation to be assisted by legal counsel, especially before the Supreme or Constitutional Court. Some countries specifically require legal representation for certain types of proceedings, such as plea bargaining [157] or extradition. [158] Defendants who are to some degree unable to conduct their own defence on account of a mental health condition of some sort are prevented from doing so in twenty-one [159] out of those thirty-one States. Nineteen [160] out of the thirty-one States provide for mandatory representation depending on the gravity of the offence. Ten [161] out of the thirty-one mandate legal counsel when the defendant is not able to speak the language in which the trial is conducted. Lastly, some countries provide for mandatory legal representation when the accused has been banned from the courtroom or has in some way disturbed the proper conduct of the trial. [162]

71. The remaining four States out of the thirty-five analysed by the Court, which establish mandatory representation as a general rule, provide for sensible exceptions. In Italy and Spain self-representation is allowed in criminal proceedings concerning minor offences. In Norway, while the rule is that defendants are obliged to have legal counsel, the judge may accept an accused’s waiver of this right, after a “holistic assessment” that takes into account all the circumstances of the case, such as the severity of the offence, the complexity of the legal issues, the ability of the indicted person to conduct his or her own defence, and the level of the court. Only San Marino rivals Portugal in the strictness of the rule, although even in this country the accused is allowed to perform some procedural acts on his or her own, such as filing an appeal.

72. The Court has also reviewed some important countries outside the Council of Europe. Canada and Hong Kong allow self-representation in all cases, while the United States of America allows it as a general rule, with a few exceptions, such as in proceedings before the Supreme Court. [163]

73. This extensive consensus has also found its way into international criminal tribunals, whose practice has also shown that the non-absolute right to self-representation entails the ability to refuse to accept court-appointed counsel. [164] The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY), in the MiloÅ¡ević case, interpreted Article 21 § 4 (d) of its Statute – whose wording is substantially identical to Article 6 § 3 (c) of the Convention – to enshrine a right to self ‑ representation, which could be restricted only “guided by a general principle of proportionality”. Indeed, the Appeals Chamber considered that the decision that had assigned the defendant counsel against his will was grounded “on a fundamental error of law: the Trial Chamber failed to recognize that any restrictions on Milosevic’s right to represent himself must be limited to the minimum extent necessary to protect the Tribunal’s interest in assuring a reasonably expeditious trial”. [165] The restrictions to “a right as fundamental as” self-representation were, therefore, “excessiv[e]”. [166] The Appeals Chamber ratified this understanding in the Å eÅ¡elj decisions, [167] and extended the right to self-representation in appeal procedures in KrajiÅ¡nik. [168]

74. The Special Court for Sierra Leone (SCSL) took a more restrictive approach to the right to self-representation, although never calling into question the principle that “Article 17(4)(d) [substantially identical to Article 6 § 3 (c) of the Convention] does guarantee to an accused person, first and foremost, the right to self-representation. This is clear from the plain and literal meaning of that provision.” However, it held that this right was not absolute, and that counsel could be imposed when the interests of justice so required. The Trial Chamber identified, therefore, a list of reasons that justified the imposition of counsel in that particular case, such as the fact that it was a joint trial. [169] In another case, the Appeals Chamber of the SCSL upheld the mandatory assignment of counsel to a defendant who was obstructing the proceedings against him. [170]

75. Lastly, I have set out above the conclusions reached by the HRC, and why this Court should take special care to engage in a meaningful dialogue with the HRC’s findings. I reproduce those considerations here. The Court should have aligned itself with the HRC and concluded, on the one hand, that a general ban on self-representation was diametrically opposed to Article 6 § 3 (c) of the Convention and, on the other hand, that any restriction of the right of self-representation should “not go beyond what is necessary to uphold the interests of justice”. [171] This would be in line with the Court’s previous case-law, as shown above. The Court has repeatedly admitted that, in order to justify limitations to the right to legal assistance of one’s own choosing, domestic courts must present “relevant and sufficient reasons for holding that this is necessary in the interests of justice”. [172] This implicit, overarching limitation clause of Article 6 § 3 (c) is also applicable to the right to self-representation in criminal procedure. In other words, any interference with that right must respect the core of everyone’s right to defend him or herself and must observe the principle of proportionality. The central question in this regard is precisely to weigh the competing interests at stake, namely, on the one hand, the defendant’s personal autonomy and, on the other hand, the public-interest reasons invoked by the national authorities to limit that autonomy. In this proportionality analysis, the State should give precedence to the least intrusive means, safeguarding as far as possible the core of the right.

76. The HRC mentions three such reasons: (1) when the defendant is substantially and persistently obstructing the proper conduct of a trial, (2) when the defendant is facing a grave charge but is unable to act in his or her own interests, and (3) when it is necessary to protect vulnerable witnesses from distress or intimidation if they are to be questioned by the accused. In particular, the second reason could be interpreted in a way that allows for compulsory imposition of legal counsel in cases of particular legal complexity or when the prospective penalties are sufficiently grave. I should add that these reasons are not exclusive and that States may have other strong grounds for imposing legal counsel, always under the supervision of this Court.

B. The application of the Convention standard to the case (§§ 77-80)

77. In the light of the above, the facts and the legal framework of the case leave no room for doubt. Under Article 287 § 4 of the CCP, in ordering the opening of the adversarial investigation the judge must always appoint a defence lawyer for the accused if the latter does not have a lawyer or court-appointed defence counsel. An accused who is a lawyer must be represented by counsel, failing which the proceedings will be rendered irrevocably null and void (Articles 119 (c), 62 and 64 (d) of the CCP).

78. Prior to the entry into force of Law no. 49/2004 of 24 August 2004, an accused who was a lawyer was entitled to conduct his or her own defence if the offence of which he or she was accused did not carry a custodial sentence (Article 64 § 1 (b) of the CCP). However, almost all the criminal offences provided for by Portuguese law carry a prison sentence, either in combination with or as an alternative to a fine. Offences punishable solely by a fine (without imprisonment) were exceedingly rare in 2004 and are even rarer now. The Articles and paragraphs of the Criminal Code list 292 different offences, of which only three are punishable just by a fine (without imprisonment). In any event, under Article 49 of the Criminal Code, a fine which has not yet been enforced can always be replaced by a prison term.

79. Since the entry into force of Law no. 49/2004 of 24 August 2004, an accused who is a lawyer may never represent him or herself, at any stage of the criminal proceedings, according to the unanimous case-law of the Constitutional Court, the Supreme Court of Justice and the courts of appeal. [173]

80. The national proceedings in the present case took place between 2013 and 2015. The domestic law and case-law applicable at that time are still unchanged today and are very clear: the applicant, a lawyer, was barred in absolute terms from representing himself at any stage of the criminal proceedings and from making his legal case before the courts. In a word, the applicant never had his day in a court of law, because he was never listened to.

VIII. Conclusion (§§ 81-82)

81. When the letter and the spirit of Article 6 § 3 (c) of the Convention coincide as exactly as they do with regard to the question of self-representation, it ill behoves a court to engage in contortions to thwart both. That contortionist exercise is further discredited if the Convention is read in the light of the prevailing consensus in international law and the domestic practices of Contracting States.

82. This case proved to be more controversial than it might first have appeared. A literally divided Court took the path of least resistance and confirmed the respondent Government’s stance. But the divide within this Court reflects two radically different perspectives of criminal procedure and the rights of the defence. In this regard, this judgment heralds a return to the biases of the tormented black past of Europe, those biases that categorised defendants as objects in the hands of the almighty State, which could always dictate what was in their interests, even against their own will.