JOINT DISSENTING OPINION OF JUDGES PEJCHAL AND WOJTYCZEK

1. We respectfully disagree with the view of our colleagues that Article 6 §§ 1 and 3 (c) of the Convention has not been violated in the instant case.

2. The case raises the question of the purpose of the procedural guarantees. The majority expressed the following view in this respect (see paragraph 120 of the judgment):

“The minimum rights listed in Article 6 § 3, which exemplify the requirements of a fair trial in respect of typical procedural situations which arise in criminal cases, are not aims in themselves: their intrinsic aim is always to contribute to ensuring the fairness of the criminal proceedings as a whole (see Ibrahim and Others , cited above, § 251 with further references).”

We agree with the view that procedural law is instrumental in relation to substantive law and is the tool for implementing substantive legal rules. One of the main aims of any legal proceedings is to produce substantially just outcomes. However, the role of procedural law is not limited to guaranteeing substantive justice. Procedural law also has autonomous aims and serves self-standing values which include human dignity, physical integrity, freedom, personal autonomy and procedural justice.

It is obvious that the right to defend oneself is an essential element of a fair trial. However, the purpose of the right to defend oneself is not limited to influencing the outcome of a criminal trial. The Convention rights should be viewed as a system and not as stand-alone guarantees that may be applied in isolation from each other. Article 6 § 3 should be read not only in the context of the other paragraphs of Article 6 but also against the backdrop of other Convention provisions and especially Article 3, Article 5 and Article 8.

The right to defend oneself is also the right to defend oneself against preventive measures taken during an investigation, especially against remand custody and other restrictions on personal freedom. One of its aims is to minimise the scope and the intensity of preventive measures taken at the pre-trial stage and pending trial, such as remand custody. The rights guaranteed under Article 6 § 3 are therefore closely connected with the rights guaranteed by Article 5 and Article 8. A person charged with a criminal offence may also face the risk of ill-treatment and may have to defend himself against such threats. In this context, the right to defend oneself and the right of access to a lawyer from the moment of the first questioning by the investigative authorities are also an important safeguard against ill-treatment by State officials, and especially the police and prison authorities. It should therefore be regarded as part of States’ obligations under Article 3. Defence may also be necessary against the press, who may be tempted to stigmatise the accused as the perpetrator, thereby affecting his reputation and privacy. In this context, restrictions upon the right to defend oneself have to be assessed not only from the viewpoint of Article 6 but also from the perspective of other provisions of the Convention, especially Articles 3, 5 and 8.

3. Article 6 § 1 sets forth the standards of procedural justice by using the terms of “fair” hearing in the English version and “ cause entendue équitablement ” in the French version. This general requirement of procedural justice is further specified in respect of criminal proceedings in paragraphs 2 and 3 of Article 6, and includes the right to defend oneself in person or through legal assistance of one’s own choosing.

A hearing that is fair and the right to defend oneself presuppose the right to be heard, which means not only the “right to speak” but also the “right to act” in the proceedings. The accused is entitled not only to present his own version of events but also to participate actively and to perform acts which produce legal effects in the proceedings. The legal subjectivity of a person is the first precondition of procedural fairness. In other words, procedural fairness presupposes the recognition of the person concerned as a legal subject, and every mentally competent person should enjoy full legal capacity in proceedings. A trial cannot be fair if the accused is just an object of the procedure and not an active subject who is able not only to present his views but also to participate actively by exercising his procedural rights in person.

Very often defence in a legal trial requires making fundamental choices: whether to plead guilty to some or all of the charges, to plead not guilty or to enter a plea bargain; whether to tell the truth or to lie, and in which way; whether to contest the impartiality of the judges, and so on. Those choices, which presuppose carefully weighing conflicting values and different risks, may have a decisive impact on the future of the accused. A lawyer may help the person concerned by identifying possible defence strategies, their prospects of success and the risks incurred, but he cannot personally bear the consequences of the choice. The accused bears all the consequences of those choices and therefore can never be deprived of the freedom to decide about his own future. We regret that the majority decided to leave these fundamental issues completely unaddressed.

4. The Court has recently developed its case-law under Article 8, stressing the importance of personal autonomy as protected by that provision (see, for instance, the judgments in the cases of Pretty v. the United Kingdom , no. 2346/02, § 61, ECHR 2002-III, and Bărbulescu v. Romania , [GC], no. 61496/08, § 70, ECHR 2017 (extracts)). Personal autonomy should be protected in all contexts, including in the context of criminal proceedings. The right to defend oneself, which is protected under Article 6, and the right to individual autonomy, protected under Article 8, overlap to a certain extent and reinforce each other. They both require that the accused can determine freely how he wishes to defend himself in criminal proceedings. The Court, as master of the legal characterisation of the facts, should have communicated the complaint not only under Article 6 but also under Article 8 of the Convention.

We note in this context that the US Supreme Court expressed the following views ( Faretta v. California , (1975) No. 73-5772, 30 June 1975, opinion of the Supreme Court, delivered by Justice Stewart in which Douglas, Brennan, White, Marshall, and Powell, JJ., joined):

“In the long history of British criminal jurisprudence, there was only one tribunal that ever adopted a practice of forcing counsel upon an unwilling defendant in a criminal proceeding. The tribunal was the Star Chamber. ...

It is undeniable that in most criminal prosecutions defendants could better defend with counsel’s guidance than by their own unskilled efforts. But where the defendant will not voluntarily accept representation by counsel, the potential advantage of a lawyer’s training and experience can be realized, if at all, only imperfectly. To force a lawyer on a defendant can only lead him to believe that the law contrives against him. Moreover, it is not inconceivable that in some rare instances, the defendant might in fact present his case more effectively by conducting his own defense. Personal liberties are not rooted in the law of averages. The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of ‘that respect for the individual which is the lifeblood of the law’. Illinois v. Allen, 397 U.S. 337, 350 -351 (Brennan, J., concurring) [422 U.S. 806, 835 ].”

We agree with this approach.

5. The Convention interpretation should observe the customary rules of treaty interpretation codified in the Vienna Convention on the Law of Treaties. The point of departure is the letter of the Convention. It is true that the wording of Article 6 § 3 is not unequivocal. This provision guarantees everyone the right to “defend himself” . The right to a defence may be exercised “in person or through legal assistance” . The object of the right enshrined in Article 6 § 3 (c) is defined in the following terms: “to defend himself in person or through legal assistance of his own choosing”. We would like to stress in this context that the formulation contained in this provision is not a logical disjunction with two rights as operands. The text does not refer to “the right to defend himself in person or the right to defend himself through legal assistance”. The wording in question defines the object (the content) of a single right and enumerates the possible means of its exercise: it is the right to defend oneself in different ways listed in this provision.

We note furthermore that coordinating conjunctions in natural language cannot be equated with operators in logic. The conjunctions “or” in English and “ ou ” in French do not impose the conclusion that it would be for the State to choose the way in which the defence may be carried out. The State cannot be said to fulfil its obligations under Article 6 § 3 if it merely grants either the right to defend oneself in person or the right to defend oneself through legal assistance.

The fact that the phrase “defend himself in person/ se défendre lui-même ” is placed before the phrase “through legal assistance/ avoir l’assistance d’un défenseur ” puts the emphasis on the personal autonomy and legal subjectivity of the accused. The use of the active infinitive further emphasises the active role of the accused.

The essential core of the right to defend oneself encompasses the right to determine the manner in which the defence should be assured. This is the right to defend oneself, not just the right to be defended. If the accused cannot determine for himself the line of his defence his right becomes meaningless and the trial cannot be regarded as fair. The State has to recognise the right to defend oneself effectively, but the defence may be in person or through legal assistance. All these considerations suggest that the choice of the means of defence is left to the accused and not to the State. Persons charged with a criminal offence may choose either to defend themselves in person or through legal assistance, or both in person and thorough legal assistance. Moreover, if a person charged with a criminal offence chooses to defend himself “through legal assistance of his own choosing”, the lawyer must act within the scope of the instructions given by that person.

6. We agree with the view that the right to defend oneself is not absolute and that certain restrictions on this right may be justified. In certain circumstances restrictions concerning the choice as to whether or not to appoint counsel may be justified. The legislation may also require that certain procedural acts have to be performed by qualified lawyers. However, the restrictions imposed must preserve the essential content of the right in question and observe the requirement of proportionality.

The majority expressed the following view (see paragraph 122 of the judgment):

“According to the long-established case-law of both the Commission and the Court, Article 6 §§ 1 and 3 (c) thus guarantees that proceedings against the accused will not take place without adequate representation for the defence, but it does not necessarily give the accused the right to decide himself in what manner his defence should be assured (see Correia de Matos , cited above; Mayzit v. Russia , no. 63378/00, § 65, 20 January 2005; and J.B. v. the Czech Republic , no. 44438/06, § 60, 21 July 2011).”

We fundamentally disagree with this approach. A situation in which an accused who is mentally competent does not have the right to decide himself in what manner his defence should be assured constitutes an infringement of the substance of the right to defend oneself, explained above, and is incompatible with the requirement of a fair hearing in Article 6. In our view the case-law of the Court should be aligned with the Convention.

7. We note that the provision in question refers to “legal assistance/ assistance d’un défenseur ”. The Convention does not refer to representation by a lawyer. The role of defence counsel is to assist the client, not to replace him. The lawyer has to advise the client and to perform legal acts in compliance with, and within the limits of, the instructions given by the client. This role of the lawyer is emphasised particularly strongly in the French text of the Convention. While the law may provide for the compulsory assistance of a lawyer it should not establish a monopoly for the lawyer to perform all legal acts in the proceedings. The accused should in principle be empowered to perform legal acts if he so chooses; only certain especially important acts, such as cassation appeals, may be reserved for the lawyer, provided that such a restriction is proportionate to the aim pursued and does not infringe the substance of the right in question.

In paragraph 156 the majority list the procedural rights of the accused. We would like to rectify here one point which has not been accurately reflected in this paragraph. The Portuguese Supreme Court found that the rules of domestic law allowed accused persons to prepare their defence together with defence counsel. They could also submit observations, statements and requests which did not raise questions of law (case no. 7/14.0TAVRS.S1, judgment of 20 November 2014, paragraph XI – see paragraph 57 of the reasoning).

The majority refer to being “assisted by counsel” and to “the requirement to be assisted by counsel” (see, for instance, paragraphs 153 and 158). We note in this context that the rights of the accused to defend himself in person are very limited under Portuguese law. All acts which produce legal effects have to be performed by an advocate, with the exception of the right to revoke measures carried out by the advocate. Therefore the instant case is not about the compulsory assistance of a lawyer in criminal proceedings but about the incapacitation of the accused in criminal proceedings. The accused is more a passive object of the proceedings, who has to bear the consequences of his counsel’s choice, than an active legal subject able to assert his autonomy and determine his destiny. This is clearly an illiberal and paternalistic element of the legal system of the respondent State.

8. The majority expressed the following view (paragraph 153):

“The Court can accept that a member State may legitimately consider that an accused, at least as a general rule, is better defended if assisted by a defence lawyer who is dispassionate and technically prepared, a premise reflected in the relevant provisions of Portuguese law on which the impugned decisions in the present case were based. It 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.”

We agree that the assistance of a lawyer is typically beneficial to the accused from the perspective of the most favourable outcome of a criminal case. The lawyer approaches the case with the distance required in order to choose the best defence strategy, and acts free from the personal stress stemming from the possibility of a conviction. However, the present case raises the fundamental question whether the State may limit the rights of an individual in order to protect him from his own irrational behaviour. Such an approach is called paternalism. We do not rule out the possibility that the State may impose such restrictions. However, in our view, the interests of the accused cannot justify the restriction of his personal autonomy to the extent provided for in Portuguese law. If one follows the logic of the majority one might well accept that citizens may be better protected if, instead of taking part in person in political life and exercising their own political rights, they leave this task to those who are dispassionate and technically prepared.

9. The majority refer, in paragraphs 117 and 129, to the judgment in the case of Animal Defenders International v. the United Kingdom ([GC], no. 48876/08, ECHR 2013 (extracts)). That judgment set forth the following standards:

“108. It emerges from that case-law that, in order to determine the proportionality of a general measure, the Court must primarily assess the legislative choices underlying it ( James and Others , § 36). The quality of the parliamentary and judicial review of the necessity of the measure is of particular importance in this respect, including to the operation of the relevant margin of appreciation (for example, Hatton , at § 128; Murphy , at § 73; Hirst at §§ 78-80; Evans , at § 86; and Dickson , at § 83, all cited above) ...

114. ... The prohibition was therefore the culmination of an exceptional examination by parliamentary bodies of the cultural, political and legal aspects of the prohibition as part of the broader regulatory system governing broadcasted public interest expression in the United Kingdom and all bodies found the prohibition to have been a necessary interference with Article 10 rights.”

The judgment in the case of Animal Defenders International links the proportionality assessment with the democratic nature and quality of the process by which the conflicting values and interests are carefully assessed and weighed. The democratic pedigree of a legislative provision is considered as an argument in favour of its compatibility with the Convention. We are not persuaded that the quality of the legislative process can justify disproportionate measures, but the question of the democratic or authoritarian pedigree of a legislative measures may be relevant from the viewpoint of the interpretation of the Convention, especially for the purpose of establishing the existence of a “common heritage of political traditions, ideals, freedom and the rule of law” or addressing questions concerning the existence of the so-called “European consensus”.

We note in this context that the impugned provisions were introduced in Portugal in 1924 during a period of non-democratic rule. While it is true that they were maintained after the establishment of constitutional democracy, the principle of compulsory representation in criminal proceedings has never been discussed in Parliament, nor has its necessity been considered by its members or by experts appointed in the legislative process. No arguments for or against were put forward in the legislative process. No deliberate legislative choice was made. The quality of the parliamentary review of the impugned measure cannot be regarded as satisfactory (contrast with paragraph 146 of the reasoning). The Court is dealing here with a remnant of a non-democratic period, serving the economic interests of a specific professional group.

We would like to stress here that the Preamble to the Convention refers, inter alia , to “an effective political democracy” , “a common understanding and observance of ... human rights” and “a common heritage of political traditions, ideals, freedom and the rule of law”. It is problematic to accept that restrictions on rights introduced under authoritarian or totalitarian regimes are part of this heritage and should be taken into account for the purpose of assessing the existence or lack of the so-called “European consensus”.

10. The majority emphasise the margin of appreciation left to the High Contracting Parties under the Convention. We agree with the view that States should enjoy a broad margin of appreciation in the implementation of the Convention. The margin of appreciation has to be respected in particular in the process of weighing conflicting values for the purpose of assessing the proportionality of a measure. This margin ends, however, where the essential minimum core of a right begins.

11. We note that the Human Rights Committee recognised that the Covenant on Civil and Political Rights guarantees the right to defend oneself without a lawyer (see UN Human Rights Committee, Correia de Matos v. Portugal , Comm. 1123/2002, U.N. Doc. A/61/40, paragraphs 7.3, 7.4 and 7.5., and General Comment No. 32 entitled “Article 14 of the ICCPR: Right to equality before courts and tribunals and to a fair trial”, CCPR/C/GC/32, paragraph 37). While we agree with this view we regret the fact that it was not supported by more detailed legal argument and in particular that the rationale and values underlying this right were not set forth by the Committee, as this omission deprives the views expressed of their persuasive force. It would have been useful to accompany the views expressed under the Covenant by more extensive reasoning explaining the interpretive choices made by the Committee.

We have here a paradoxical situation in which there is a universal standard much higher than the regional standard established by the case-law of this Court. In any event, the respondent State has the obligation to adapt its domestic legislation to the International Covenant on Civil and Political Rights, and the outcome of this case does not affect that obligation. The majority decided to challenge the Human Rights Committee, disregarding the provisions of the Convention and engaging in a fight for the preservation of the margin of appreciation under the Convention in an area where this margin of appreciation has in any event been considerably reduced by the entry into force of the International Covenant on Civil and Political Rights. The final result is simply an increased fragmentation of international human rights law.

12. In conclusion: the restrictions imposed on the accused in the instant case prevented him from determining how his defence should be conducted and therefore infringed the substance of the right to defend oneself guaranteed by Article 6 § 3 (c) of the Convention. Moreover, the criminal proceedings involving the applicant, considered as a whole, were blatantly unfair and violated the right to a fair trial guaranteed by Article 6 § 1 of the Convention. We regret that the majority decided to condone a paternalistic measure reducing the fundamental human right to defend oneself to the right to be defended. Such an illiberal approach is not without consequences. The instant judgment paves the way for wide acceptance of paternalistic elements in legal systems.