DISSENTING OPINION OF JUDGE BOÅ NJAK

1. I unfortunately cannot agree with the majority that in the present case there has been no violation of Article 6 §§ 1 and 3 (c) of the Convention.

2. In this particular case, the Grand Chamber was invited to revisit the Court’s case-law on the right of an accused to defend himself in person in criminal proceedings, as guaranteed by Article 6 § 3 (c) of the Convention. In a past case involving very similar facts, the same applicant was refused leave to do so and was instead assigned a lawyer to represent him. A Chamber of this Court dismissed his application as manifestly ill-founded, on the grounds that it fell within the States’ margin of appreciation whether to allow an accused to defend himself in person or to assign him a lawyer [174] . Subsequently, the applicant submitted a communication based on those very same facts to the United Nations Human Rights Committee (hereinafter “the HRC”), arguing that his analogous right under Article 14 § 3 (d) of the International Covenant on Civil and Political Rights had been violated. In its Views adopted on 28 March 2006, the HRC found that the above ‑ mentioned right on the applicant’s part had not been respected [175] .

3. While coherence in international human rights law is important, the Court is not bound by the position of the HRC and is not expected to adapt its case-law on account of a specific instance of discrepancy in the views of the two bodies. In my opinion, however, the position taken by the Chamber in application no. 48188/99 was incompatible with some fundamental human rights principles applicable to criminal procedure. These principles are clearly discernible from the existing case-law of our Court on different Article 6 issues. Therefore, the Grand Chamber was faced with an opportunity to align the Court’s case-law on matters of principle.

4. It is my belief that in the light of the fundamental principles of procedural fairness as also enshrined in Article 6 of the Convention, criminal proceedings are to be understood as the resolution of a legal dispute between two parties, one being the prosecutor, asserting that the accused has committed a criminal offence for which he is also criminally responsible, and the other being the accused, defending himself against the prosecutor’s claims. Thus the accused is to be perceived as an autonomous subject of the proceedings, a position which was historically far from self ‑ evident. Often an accused was considered an object of examination or a source of information, his confession being the “crown jewel” of evidence.

5. This conception of procedural fairness is also clearly reflected in the case-law of this Court. Although they are not explicitly mentioned in the text of Article 6 of the Convention, the Court has, for example, considered that the right to silence, the privilege against self-incrimination and the principle of equality of arms form an integral part of the Article 6 guarantees [176] . If proceedings are to be considered fair, the accused cannot be turned into an object of the proceedings and be compelled to testify against himself. The right not to incriminate oneself lies at the heart of the notion of a fair procedure under Article 6 [177] . A situation where an accused is turned from a subject to an object of the proceedings would be fundamentally unfair.

6. As an autonomous subject of criminal proceedings an accused can, at least in principle, decide on the manner in which he wishes to be defended. Consequently, he is entitled to determine whether he needs legal assistance in his defence or not [178] . In a particular case, his choice may seem to be counterproductive, irrational or simply incompatible with what an independent observer would consider to be in the accused’s best interest. However, in a democratic society an individual is in principle entitled to such choices for various reasons. First and foremost, the State is not omniscient. It might not necessarily understand the rationale behind the accused’s actions and is not necessarily best placed to know what is good for his position in a particular set of criminal proceedings. Furthermore, the State’s intervention is not necessarily designed in good faith. It might interfere with the defence in order to impose its own interests in a particular set of proceedings. Finally, autonomy as such is incompatible with outside interference. Just as a patient may in principle refuse medical assistance, an accused may refuse legal assistance. The right to choose counsel also implies a right not to choose any [179] .

7. Consequently, I fundamentally disagree with the view of the majority that Article 6 §§ 1 and 3 (c) of the Convention does not give the accused the right to decide himself in what manner his defence should be assured and that the decision to allow an accused to defend himself in person or to assign him a lawyer falls within the margin of appreciation of the Contracting States. Such a paternalistic approach, denying any autonomy on the part of the accused to determine his defence, is in my view incompatible with procedural fairness.

8. Like any principle in law, the accused’s autonomy to determine his own defence may have limits and the court conducting the criminal proceedings may be called upon to intervene. In doing so it may assign an attorney to assist the accused contrary to the latter’s wish to defend himself without counsel. Various convincing or even compelling reasons may exist calling for such intervention. First and foremost (a), the autonomy of the accused may be factually diminished, for example, on account of illness [180] , disability or age [181] . Equally (b), the autonomy of the accused may be considerably limited owing to the circumstances of the case. He may be in a situation of special vulnerability, for example in cases of deprivation of liberty coupled with a first appearance or questioning where the interview statement will be used in court [182] , or during plea bargaining. In such situations, an attorney can reasonably act as a buffer preventing the State and its agents from overriding the subject status of the accused. The vulnerability is all the more evident where the accused is facing a long-term custodial sentence or other serious punishment [183] . Likewise, the legal and factual complexity of a case may render the legal assistance of an attorney obligatory [184] . Furthermore (c), the court may establish that the accused is conducting his defence in a manifestly irrational manner. Finally (d), it might be necessary for the court to intervene if the accused abuses his right to self-representation in order to undermine the authority of the court, or has a negative effect on the interest of his co-accused in having the proceedings conducted in an expeditious manner [185] . This list is not an exhaustive one – other circumstances pertaining to a specific case or a specific defendant may also call for mandatory legal assistance.

9. It goes without saying that the High Contracting Parties are better placed than the Court to establish whether, in a particular case, any compelling reasons exist for interfering with an accused’s choice to conduct his own defence. In doing so, they enjoy a certain margin of appreciation. But the onus is on them to produce such reasons in the proceedings before the Court should a dispute on the matter arise. These reasons must be concrete and pertain to the case in question. They must also be compatible with the principle of fairness, encompassing the guarantees of Article 6 of the Convention.

10. In the present case the applicant was assigned counsel simply because the law mandated representation if a prison sentence was possible, however remote this possibility may have been under the circumstances. The applicant could not successfully apply for leave to represent himself, as the national law did not provide for any exceptions. In their observations before the Grand Chamber the respondent Government asserted that the overriding interests of justice and the effective defence of a defendant legitimised the provisions of the Code of Criminal Procedure on compulsory representation, which were applicable in the applicant’s case. However, the Government failed to specify any interest of justice pertaining to the case in question and, in particular, why the applicant should be considered incapable of defending himself effectively. In addition, the assignment of counsel to the applicant was clearly futile: the lawyer did not perform any acts in the applicant’s defence, while the applicant was prevented from acting in his own defence. In short, it is clear that in the present case no interests of any sort were served by interfering with the applicant’s right to self-representation.

11. In such circumstances, I cannot but conclude that the interference with the applicant’s autonomy in conducting his defence in criminal proceedings had no reasonable and concrete justification and was not fair under the circumstances. Consequently, I believe that the Grand Chamber should have found a violation of Article 6 §§ 1 and 3 (c) of the Convention.

[1] In the majority opinion Judge Stewart stated as follows: “ … the Star Chamber has, for centuries, symbolized disregard of basic individual rights. The Star Chamber not merely allowed, but required, defendants to have counsel. The defendant’s answer to an indictment was not accepted unless it was signed by counsel. When counsel refused to sign the answer, for whatever reason, the defendant was considered to have confessed.” See also paragraph 4 of the joint dissenting opinion of Judges Pejchal and Wojtyczek.

[2] See, for example, Delia Saldías de López v. Uruguay , Communication No. 52/1979, U.N. Doc. CCPR/C/OP/1 at 88 (1984), § 13; Domukovsky and Others v Georgia , HRC Communications 623/1995, 624/1995, 626/1995, 627/1995, U.N. Docs CCPR/C/62/D/623/1995 (1998), CCPR/C/62/D/624/1995 (1998), CCPR/C/62/D/626/1995 (1998), and CCPR/C/62/D/627/1995 (1998), § 18.9; and Glenford Campbell v. Jamaica , CCPR/C/44/D/248/1987 (1992), § 6.6.

[3] See also paragraph 41 of the dissenting opinion of Judge Pinto de Albuquerque.

[4] Article 64 of the Portuguese Code of Criminal Procedure (“the CCP”).

[5] Judgment, § 123.

[6] X v. Finland , no. 34806/04, ECHR 2012, and Correia de Matos v. Portugal (dec.), no. 48188/99, ECHR 2001-XII .

[7] Handyside v. the United Kingdom , 7 December 1976, § 48, Series A no. 24.

[8] Other than the above-mentioned landmark Handyside case, see Müller and Others v. Switzerland , 24 May 1988, § 35, Series A no. 133.

[9] Otto-Preminger-Institut v. Austria , 20 September 1994,§ 56, Series A no. 295 ‑ A, and Wingrove v. the United Kingdom , 25 November 1996, § 58, Reports of Judgments and Decisions 1996 ‑ V.

[10] Fretté v. France , no. 36515/97, § 41, ECHR 2002-I.

[11] Mentzen v. Latvia (dec.), no. 71074/01, ECHR 2004-XII; Kuharec alias Kuhareca v. Latvia (dec.), no. 71557/01, 7 December 2004; and Bulgakov v. Ukraine , no. 59894/00, § 43, 11 September 2007.

[12] Leyla Şahin v. Turkey [GC], no. 44774/98, § 121, ECHR 2005-XI; S.A.S. v. France [GC], no. 43835/11, §§ 129-30, ECHR 2014; and İzzettin Doğan and Others v. Turkey [GC], no. 62649/10, § 112, ECHR 2016.

[13] B. and L . v. the United Kingdom , no. 36536/02, § 36, 13 September 2005.

[14] Friend and Others v. the United Kingdom (dec.), no. 16072/06, § 50, 24 November 2009.

[15] A, B and C v. Ireland [GC], no. 25579/05, § 232, ECHR 2010.

[16] S.H. and Others v. Austria [GC], no. 57813/00, § 94, ECHR 2011.

[17] Stübing v. Germany , no. 43547/08, § 60, 12 April 2012.

[18] Ireland v. the United Kingdom , 18 January 1978, § 207, Series A no. 25, confirmed by Brannigan and McBride v. the United Kingdom , 26 May 1993, § 43, Series A no. 258-B; Aksoy v. Turkey , 18 December 1996, § 68, Reports 1996-VI; and A and Others v. the United Kingdom [GC], no. 3455/05, § 173, 19 February 2009.

[19] Since Handyside and Müller and Others (both cited above), which both dealt with the criminalisation of obscenity, the Court has exercised some restraint with regard to other aspects of penal and prison law on the basis of the “better placed” argument. See Dickson v. the United Kingdom [GC], no. 44362/04, § 78, ECHR 2007-V; Khoroshenko v. Russia [GC], no. 41418/04, §§ 120-21, ECHR 2015; and Meier v. Switzerland , no. 10109/14, § 78, ECHR 2016.

[20] A telling example is Armani da Silva v. the United Kingdom [GC], no. 5878/08, §§ 265 ‑ 68, ECHR 2016, on the threshold evidentiary test to bring someone to a criminal trial.

[21] Ždanoka v. Latvia [GC], no. 58278/00, § 134, ECHR 2006-IV.

[22] Costache v. Romania (dec.), no. 25615/07, § 23, 27 March 2012; Strzelecka v. Poland (dec.), no. 14217/10, § 52, 2 December 2014; and Kashchuk v. Ukraine (dec.), no. 5407/06, § 58, 10 May 2016.

[23] Berger-Krall and Others v. Slovenia , no. 14717/04, § 192, 12 June 2014.

[24] The leading authority is now Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, ECHR 2017, which on this topic goes back to a specific line of the case-law derived from Sentges v. the Netherlands (dec.), no. 27677/02, 8 July 2003; Pentiacova and Others v. Moldova (dec.), no. 14462/03, ECHR 2005-I; Gheorghe v. Romania (dec.), no. 19215/04, 22 September 2005; Wiater v. Poland (dec.) , no. 42290/08, § 39, 15 May 2012; and McDonald v. the United Kingdom , no. 4241/12, § 54, 20 May 2014.

[25] The leading authority is Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, §§ 52 and 63, ECHR 2006-VI. See also, among other authorities, Pearson v. the United Kingdom , no. 8374/03, § 24, 22 August 2006; Walker v. the United Kingdom , no. 37212/02, § 33, 22 August 2006; Barrow v. the United Kingdom , no. 42735/02, § 35, 22 August 2006; Andrejeva v. Latvia [GC], no. 55707/00, § 83, ECHR 2009; Cichopek and Others v. Poland (dec.), no. 15189/10, §§ 132, 134 and 143, 14 May 2013; Béláné Nagy v. Hungary [GC], no. 53080/13, § 113, ECHR 2016; and Fábián v. Hungary [GC], no. 78117/13, § 115, ECHR 2017.

[26] N.K.M. v. Hungary , no. 66529/11, § 49, 14 May 2013; Gáll v. Hungary , no. 49570/11, § 48, 25 June 2013; and R.Sz. v. Hungary , no. 41838/11, § 46, 2 July 2013.

[27] Koufaki and ADEDY v. Greece (dec.), nos. 57665/12 and 57657/12, §§ 37 and 39, 7 May 2013. See also Da Conceição Mateus and Santos Januário v. Portugal (dec.), nos. 62235/12 and 57725/12, § 22, 8 October 2013, and Da Silva Carvalho Rico v. Portugal (dec.), no. 13341/14, § 37, 1 September 2015.

[28] O’Reilly and Others v. Ireland (dec.), no. 54725/00, 28 February 2002; and Wilk v. Poland (dec.), no. 64719/09, § 49, 17 October 2017.

[29] The leading case is James and Others v. the United Kingdom , 21 February 1986, § 45, Series A no. 98. See, among other noteworthy cases, The Former King of Greece and Others v. Greece [GC], no. 25701/94, § 87, ECHR 2000-XII; Malama v. Greece , no. 43622/98, § 46, ECHR 2001-II; Zvolský and Zvolská v. the Czech Republic , no. 46129/99, § 67, ECHR 2002-IX; Broniowski v. Poland [GC], no. 31443/96, § 149, ECHR 2004-V; Bäck v. Finland , no. 37598/97, § 53, ECHR 2004-VIII; Bečvář and Bečvářová v. the Czech Republic , no. 58358/00, § 66, 14 December 2004; Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, § 91, ECHR 2005-VI; and Draon v. France [GC], no. 1513/03, § 75, 6 October 2005.

[30] Hutten-Czapska v. Poland [GC], no. 35014/97, § 165, ECHR 2006-VIII.

[31] Gillow v. the United Kingdom , 24 November 1986, § 56, Series A no. 109.

[32] Chapman v. the United Kingdom [GC], no. 27238/95, §§ 90-91, ECHR 2001-I; Beard v. the United Kingdom [GC], no. 24882/94, § 102, 18 January 2001; Gorraiz Lizarraga and Others v. Spain , no. 62543/00, § 70, ECHR 2004-III; and Vistiņš and Perepjolkins v. Latvia [GC], no. 71243/01, § 98, 25 October 2012.

[33] Gherghina v. Romania [GC] (dec.), no. 42219/07, § 114, 9 July 2015.

[34] The leading case is Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 97, ECHR 2003-VIII.

[35] Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, §§ 90-91, ECHR 2007 ‑ I; and El Majjaoui & Stichting Touba Moskee v. the Netherlands (striking out) [GC], no. 25525/03, § 32, 20 December 2007.

[36] The “better placed” argument was first used with regard to evidence assessment in X v. the United Kingdom , 5 November 1981, § 43, Series A no. 46, on the basis of the reasoning in Winterwerp v. the Netherlands , 24 October 1979, § 40, Series A no. 33. The “best placed” argument was first used in Wilhelm v. Germany (dec.), no. 34304/96, 20 April 1999, followed by Johnson v. the United Kingdom (dec.), no. 42246/98, 29 November 2001. For more recent cases see Vaas v. Germany , no. 20271/05, § 68, 26 March 2009; Gorgievski v. the Former Yugoslav Republic of Macedonia , no. 18002/02, § 53, 16 July 2009; Tali v. Estonia , no. 66393/10, § 77, 13 February 2014; and Poletan and Azirovik v. the Former Yugoslav Republic of Macedonia , nos. 26711/07, 32786/10 and 34278/10, § 66, 12 May 2016.

[37] Witek v. Poland , no. 13453/07, § 46, 21 December 2010; Biziuk v. Poland (no. 2) , no. 24580/06, § 47, 17 January 2012; and Koski v. Finland (dec.), no. 53329/10, § 34, 19 November 2013.

[38] The most important authority is Kotov v. Russia [GC], no. 54522/00, § 122, 3 April 2012, following a line of case-law from Quinn v. France , 22 March 1995, § 47, Series A no. 311; Pekinel v. Turkey , no. 9939/02, § 53, 18 March 2008; and Kuokkanen and Johannesdahl v. Finland (dec.), no. 38147/12, § 27, 2 June 2015.

[39] Slivenko v. Latvia [GC], no. 48321/99, § 105, ECHR 2003-X.

[40] Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], no. 45036/98, § 143, ECHR 2005-VI, which also refers to the European Community’s judicial organs.

[41] De Diego Nafría v. Spain , no. 46833/99, § 39, 14 March 2002; and Transado ‑ Transportes Fluviais do Sado, S.A. v. Portugal (dec.), no. 35943/02, ECHR 2003-XII.

[42] Pla and Puncernau v. Andorra , no. 69498/01, § 46, ECHR 2004-VIII.

[43] Šilih v. Slovenia [GC], no. 71463/01, § 210, 9 April 2009.

[44] Karácsony and Others v. Hungary [GC], nos. 42461/13 and 44357/13, § 143, ECHR 2016.

[45] Garib v. the Netherlands [GC], no. 43494/09, § 161, ECHR 2017.

[46] Atlan v. the United Kingdom , no. 36533/97, § 45, 19 June 2001.

[47] Steel and Others v. the United Kingdom , 23 September 1998, § 105, Reports 1998-VII, and Mangouras v. Spain [GC], no. 12050/04, § 85, ECHR 2010.

[48] Stolboushkin v. Russia (dec.), no. 11511/03, 6 July 2010; Sobol and Others v. Russia (dec.), no. 11373/03, 24 June 2010; and Elinna Shevchenko v. Russia (dec.), no. 1250/05, 14 October 2010.

[49] The leading case is Lithgow and Others v. the United Kingdom , 8 July 1986, Series A no. 102. For more recent cases, see Musci v. Italy [GC], no. 64699/01, § 95, ECHR 2006 ‑ V; Burdov v. Russia (no. 2) , no. 33509/04, §§ 65-70, ECHR 2009; AltıntaÅŸ v. Turkey (dec.), 31866/09, 24 August 2010; Olymbiou v. Turkey (just satisfaction), no. 16091/90, § 26, 26 October 2010; Kirnis v. Latvia , no. 34140/07, § 91, 12 January 2017; Stamova v. Bulgaria , no. 8725/07, § 67, 19 January 2017; and Petrovi v. Bulgaria , no. 26759/12, § 39, 2 February 2017.

[50] Tolstoy Miloslavsky v. the United Kingdom , 13 July 1995, § 48, Series A no. 316 ‑ B.

[51] A.L. v. Poland , no. 28609/08, § 72, 18 February 2014; and Nekvedavicius v. Germany (dec.), no. 46165/99, 19 June 2003.

[52] Gnahoré v. France , no. 40031/98, § 63, ECHR 2000-IX.

[53] Handyside , cited above, § 48; James and Others , cited above, § 46; Maurice v. France [GC], no. 11810/03, § 117, ECHR 2005-IX; and Fábián , cited above, § 124.

[54] Gündüz v. Turkey , no. 35071/97, § 49, ECHR 2003-XI, and Stjerna v. Finland , 25 November 1994, § 42, Series A no. 299 ‑ B.

[55] Winterwerp , cited above, § 46.

[56] Article 19 of the Convention.

[57] Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 54, ECHR 2011; and Bédat v. Switzerland [GC], no. 56925/08, § 54, ECHR 2016.

[58] Casado Coca v. Spain , 24 February 1994, § 55, Series A no. 285-A; Lindner v. Germany (dec.), no. 32813/96, 9 March 1999; LeÅ¡ník v. Slovakia , no. 35640/97, § 55, ECHR 2003 ‑ IV; and Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 63, ECHR 2012.

[59] P4 Radio Hele Norge ASA v. Norway (dec.), no. 76682/01, ECHR 2003-VI; and Szima v. Hungary , no. 29723/11, § 26, 9 October 2012.

[60] Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 113, ECHR 1999-III, and Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 100, ECHR 2003-II.

[61] Ireland v. the United Kingdom , cited above, § 207, and subsequent case-law cited above.

[62] An eloquent example can be seen in Friend and Others , cited above, § 50. In Ždanoka , cited above, § 134, both tests are equated.

[63] See for another patent example, Muršić v. Croatia [GC], no. 7334/13, ECHR 2016.

[64] Judgment, § 126, repeated in § 130.

[65] Judgment, § 137.

[66] Judgment, § 130.

[67] Judgment, § 131.

[68] Judgment, § 137.

[69] Albania, Armenia, Austria, Bosnia and Herzegovina, Bulgaria, Croatia, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Ireland, Latvia, Lithuania, Luxembourg, Malta, the Republic of Moldova, Monaco, Montenegro, the Netherlands, Poland, Romania, the Russian Federation, Slovakia, Slovenia, Sweden, Turkey, Ukraine and the United Kingdom.

[70] See below for a more detailed description of the practice within the Council of Europe.

[71] Christine Goodwin v. the United Kingdom , no. 28957/95, §§ 84-85, ECHR 2002-VI , my emphasis.

[72] Ibid., § 55.

[73] See the joint dissenting opinion of Judges Ziemele, Sajó, Kalaydjieva, Vučinić and De Gaetano in Animal Defenders International v. the United Kingdom [GC], no. 48876/08, ECHR 2013, paragraph 10: “there can be no double standards of human rights protection on grounds of the ‘origin’ of the interference.” The point is made precisely while criticising the distortion of a European consensus.

[74] Bayatyan v. Armenia [GC], no. 23459/03, § 123, ECHR 2011 .

[75] Sørensen and Rasmussen v. Denmark [GC], nos. 52562/99 and 52620/99, § 70, ECHR 2006-I, .

[76] Ibid., § 76.

[77] S.H. and Others v. Austria [GC], cited above, § 97.

[78] Ibid., § 96 (recognising that the existence of a “clear trend” did not “decisively narrow the margin of appreciation of the State” in a case concerning permission for some forms of assisted reproduction). But in Société de Conception de Presse et d’Édition and Ponson v. France (no. 26935/05, 5 March 2009), a general legislative ban was found to be proportionate precisely because of the uncontested European consensus on a general ban in respect of tobacco advertisements. No such consensus can be found in the present case.

[79] Judgment, § 130.

[80] Judgment, § 134.

[81] In Mamatkulov and Askarov v. Turkey ([GC], nos. 46827/99 and 46951/99, ECHR 2005 ‑ I), the Court explicitly grounded its decision concerning interim measures on the findings of other human rights bodies, such as the HRC, the Inter-American Court of Human Rights and the Committee Against Torture (§§ 123-24). In Nada v. Switzerland ([GC], no. 10593/08, ECHR 2012), the Court found that even if a country had diverging obligations arising from different international commitments, it should do its best to harmonise its different duties (§§ 81, 170 and 197). Finally, in Magyar Helsinki Bizottság v. Hungary ([GC], no 18030/11, §§140-43, ECHR 2016), the Court relied heavily on an international consensus in finding a right to free access to information as enshrined in Article 10 of the Convention.

[82] HRC, General Comment No. 32, 23 August 2007.

[83] HRC, Communication No. 1123/2002, Correia de Matos v. Portugal , §§ 7.4-7.5.

[84] HRC, General Comment No. 32, cited above, § 37.

[85] Other than the brief paragraph 73 of the judgment, the majority did not deal with the developments in international criminal tribunals, which also very solidly provide for the right to self-representation. But even that brief reference was ignored in the majority’s reasoning.

[86] Scoppola v. Italy (no. 2) [GC], no. 10249/03, 17 September 2009.

[87] X v. Germany , no. 7900/77, Commission decision of 6 March 1978, Decisions and Reports (DR) 13.

[88] Scoppola , cited above, § 109, emphasis added. This consensus was revealed through the adoption of the American Convention on Human Rights, the Charter of Fundamental Rights of the European Union and the Statute of the International Criminal Court (ibid., §§ 105-06).

[89] Bayatyan , cited above, § 102, emphasis added.

[90] Bayatyan , cited above, §108.

[91] Judgment, § 135.

[92] Ibid .

[93] Brualla Gómez de la Torre v. Spain , 19 December 1997, Reports 1997 ‑ VIII. Spain had not yet ratified Protocol No. 7 to the Convention, which provides for the right to appeal in criminal matters.

[94] Andrejeva , cited above.

[95] Delcourt v. Belgium , 17 January 1970, § 25, Series A no. 11.

[96] HRC, General Comment No. 32, cited above, § 12.

[97] HRC, Communication No. 450/1991, I.P. v. Finland , § 6.2.

[98] Judgment, § 67.

[99] Article 35 § 2 (b) of the Convention.

[100] Article 5 § 2 (a) of the Optional Protocol to the ICCPR, ratified by Portugal.

[101] Judgment, § 143.

[102] Judgment, § 129.

[103] Judgment, § 110.

[104] Judgment, § 117.

[105] Judgment, § 145.

[106] Judgment, § 145.

[107] James and Others , cited above, § 48; Evans v. the United Kingdom [GC], no. 6339/05, § 86, ECHR 2007-I; Animal Defenders International , cited above, §§ 114-16; and Shindler v. the United Kingdom , no. 19840/09, § 117, 7 May 2013.

[108] Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, §§ 79-80, ECHR 2005-IX; Dickson , cited above, § 78; and Alajos Kiss v. Hungary, no. 38832/06, § 41, 20 May 2010.

[109] Judgment, § 145.

[110] I am referring to the travaux préparatoires of the Code itself and of Laws no. 59/88 and no. 48/2007, mentioned in paragraph 146 of the judgment. The aforementioned travaux préparatoires are publicly available online.

[111] See the joint dissenting opinion of Judges Ziemele, Sajo, Kalaydjieva, Vučinić and De Gaetano in Animal Defenders International , cited above, § 9.

[112] See the critical remarks of the former Vice-President of the Court Judge Tulkens, “Conclusions Générales”, in Sudre, Frédéric (ed.), Le principe de la subsidiarité au sens du droit de la Convention européenne des droits de l’Homme (Anthemis 2014), p. 406: “le danger de la procéduralisation est que le contrôle de la Cour s’épuise dans le constat qu’il est satisfait aux impératifs procéduraux et ne comporte plus d’aspect substantiel. La procéduralisation risque alors d’être un alibi d’un contrôle sur le fond et pourrait faire le jeu de ceux qui veulent alléger la surveillance de la Cour sur les décisions étatiques.” For recent scholarly literature on this problem, see Saul, “The European Court of Human Rights’ Margin of Appreciation and the Processes of National Parliaments”, in (2015) Human Rights Law Review , 745-774; Gerards and Brems (eds.), Procedural Review in European Fundamental Rights Cases , CUP, 2017; and Arnadóttir, “The ‘procedural turn’ under the European Convention on Human Rights and presumptions of Convention compliance”, in (2017) International Journal of Constitutional Law , 9-35.

[113] Judgment, § 156.

[114] Judgment, § 46.

[115] Judgment, § 48.

[116] Judgment, § 42.

[117] Judgment, § 43. See also Supreme Court of Justice, judgment of 25 September 2008, case no. 2300/08; Judgment of the Guimarães Court of Appeal of 9 January 2017, Case no. 228/14.6JABRG-A.G1; Judgment of the Coimbra Court of Appeal of 3 June 2015, Case no. 2320/12.2TALRA-A.C1; Judgment of the Evora Court of Appeal of 24 September 2013, Case no. 599/09TAOLH.

[118] Judgment, § 118.

[119] Judgment, §§ 105 and 107 for the position of the Government and §§ 94 and 96 for the position of the applicant. The majority’s line of argument is not even attuned to the Government’s submissions.

[120] See the case-law of the Court on misinterpretation of legal and factual arguments submitted by the parties with a decisive influence on the outcome of the case: Baumann v. Austria (revision), no. 76809/01, 9 June 2005. On the requirement of a “new fact” for the revision of a judgment, see E.P. v. Italy (revision), no. 31127/96, 3 May 2001; Pupillo v. Italy (just satisfaction), no. 41803/98, 18 December 2001; Viola v. Italy (revision), no. 44416/98, 7 November 2002; Perhirin and 29 Others v. France (revision), no 44081/98, 8 April 2003; Karagiannis and Others v. Greece (revision), no. 51354/99, 8 July 2004; Sabri Taş v. Turkey (revision), no. 21179/02, 25 April 2006; Davut Mıçooğulları v. Turkey (revision), no. 6045/03, 16 December 2008; Fonyódi v. Hungary (revision), no. 30799/04, 7 April 2009; and Hertzog and Others v. Romania (revision), no. 34011/02, 14 April 2009.

[121] Judgment, § 143.

[122] Judgment, § 147.

[123] Judgment, § 148.

[124] Judgment, § 153.

[125] Judgment, § 110.

[126] Judgment, § 152.

[127] Contrast with Gillow , cited above, § 56, and Ždanoka , cited above, § 128, and their requirement of “sufficient degree of individualisation” when a law bars a category of people from exercising a Convention right.

[128] Judgment, § 154.

[129] Judgment, § 162.

[130] Judgment, § 163.

[131] Judgment, §164.

[132] Judgment, compare §§ 16 and 20.

[133] Judgment, § 165.

[134] Judgment, § 165. To quote the partly dissenting opinion of Judges Sajó, Lazarova-Trajkovska and Vučinić, joined by Judge Turković, in Simeonovi v. Bulgaria [GC], no. 21980/04, ECHR 2017: “The overall fairness analysis as applied in this case runs the risk of replacing the evaluation of the fairness of a trial with that of a plausibility of a conviction.”

[135] Judgment, § 50.

[136] The domestic courts only stated that “the applicant was not entitled to act in the proceedings without the assistance of the defence counsel” (judgment, § 13), and not that he was mentally unfit or that he “lacked” the mental capacity to represent himself (§ 165).

[137] X v. Norway , no. 5923/72, Commission decision of 30 May 1975, DR 3, p. 44.

[138] Judgment, § 122.

[139] Judgment, § 137.

[140] Correia de Matos (dec.), cited above.

[141] Croissant v. Germany , 25 September 1992, § 27, Series A no. 237-B .

[142] Croquet, “The right of self-representation under the European Convention on Human Rights: what role for the limitation analysis?”, in (2012) 3 European Human Rights Law Review 292-308, rightly criticising the legal uncertainty created by the erroneous interpretation of Croissant in the Court’s first Correia de Matos decision.

[143] Ibid., §§ 28 and 30.

[144] Correia de Matos (dec.), cited above.

[145] X v. Finland , cited above, § 182.

[146] Ibid . , §§ 124-26 and 190.

[147] Weber v. Switzerland , no. 24501/94, Commission decision of 17 May 1995.

[148] See Article 29 of the Code of Criminal Procedure of Geneva.

[149] Among other authorities, Lagerblom v. Sweden , no. 26891/95, §§ 50 and 54, 14 January 2003, and Mayzit v. Russia , no. 63378/00, § 66, 20 January 2005, following Croissant , cited above, § 29.

[150] On the three stages of the proportionality test, see my opinion in Mouvement raëlien suisse , cited above.

[151] Judgment, § 137.

[152] For example, Croissant , cited above, § 29.

[153] To buttress the argument, a review of European history could have helped to show that dictatorships usually deprive defendants of choice as to the form of representation and impose legal assistance on them. See the example of such restrictions in Nazi Germany and Austria, first in the special criminal courts ( Sondergerichten ) and afterwards in all ordinary criminal courts: Verordnung der Reichsregierung über die Bildung von Sondergerichten vom 21. März 1933 , § 10; Verordnung über die Zuständigkeit der Strafgerichte vom 1. Februar 1940 , § 32; Verordnung zur Durchführung der Verordnung über die Zuständigkeit der Strafgerichte vom 13. März 1949 , § 18; Verordnung zur weiteren Anpassung der Strafrechtspflege an die Erfordernisse des totalen Kriegs vom 13. Dezember 1944 , § 12.

[154] On the core of the right in an Article 6 case, see my separate opinion in Károly Nagy v. Hungary [GC], no. 56665/09, ECHR 2017.

[155] On the importance of the systematic element of interpretation see my opinion in Al ‑ Dulimi and Montana Management Inc. v. Switzerland [GC], no. 5809/08, §§ 17-24, ECHR 2016.

[156] Albania, Armenia, Bulgaria, Croatia, Finland, France, Georgia, Greece, Germany, Hungary, Lithuania, Luxembourg, Monaco, the Republic of Moldova, the Netherlands, the Russian Federation, Slovakia, Ukraine and the United Kingdom.

[157] Croatia, France, Georgia, Latvia, Montenegro and Ukraine.

[158] Lithuania and Slovakia.

[159] Albania, Armenia, Austria, Bosnia and Herzegovina, Bulgaria, Croatia, Estonia, Finland, France, Georgia, Germany, Hungary, Latvia, Lithuania, the Republic of Moldova, Montenegro, Romania, the Russian Federation, Slovenia, Turkey and Ukraine.

[160] Austria, Bosnia and Herzegovina, Bulgaria, Croatia, Estonia, Finland, Georgia, Germany, Greece, Hungary, Lithuania, the Republic of Moldova, Montenegro, Romania, the Russian Federation, Slovenia, Sweden, Turkey and Ukraine.

[161] Armenia, Austria, Bulgaria, Georgia, Hungary, Latvia, Lithuania, the Republic of Moldova, the Russian Federation and Ukraine.

[162] For example, Croatia, Georgia and Malta.

[163] See Faretta v. California , 422 U.S. 806 (1975).

[164] See Ambos, Treatise on International Criminal Law , 2016, III, 165-67; Boas and others , International Criminal Procedure , Cambridge University Press, 2011, Volume III, 156-63; Abeke, The right to self-representation in International Criminal Jurisdictions , Tilburg University, 2011; Zahar, “Legal aid, self-representation and crisis at the Hague Tribunal”, in (2008) 19 Criminal Law Forum 241; Scharf, “Self-representation versus assignment of defence counsel before international criminal tribunals”, in (2006) 4 Journal of International Criminal Justice 31; Temminck Tuinstra, “Assisting an accused to represent himself: Appointment of amici curiae as the most appropriate option”, in (2006) 4 Journal of International Criminal Justice 47; and Jørgensen, “The problem of self-representation at International Criminal Tribunals: striking a balance between fairness and effectiveness”, in (2006) 4 Journal of International Criminal Justice 64.

[165] Prosecutor v. Slobodan Milošević , Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel, 1 November 2004, § 17.

[166] Ibid., §18.

[167] Prosecutor v. Šešelj , Case no. IT-03-67-PT. Decision on Prosecution’s Motion for Order Appointing Counsel to Assist Vojislav Šešelj with his Defence, 9 May 2003; and Prosecutor v. Šešelj , Case no. IT-03-67-AR73.3. Decision on Appeal Against the Trial Chamber’s Decision on Assignment of Counsel, 20 October 2006.

[168] Prosecutor v. Krajišnik , Case no. IT-00-39-T, Reasons for Oral Decision Denying Mr. Krajišnik’s Request to Proceed Unrepresented by Counsel, 18 August 2005.

[169] Prosecutor v. Norman, Fofana, and Kondewa , Case No. SCSL-04-14-T, Decision on the Application of Samuel Hinga Norman for Self-Representation under Article 17(4)(d) of the Statute of the Special Court, 8 June 2004.

[170] Prosecutor v. Sesay, Kallon and Gbao , Case No. SCSL-04-15-T, Decision on Application for Leave to Appeal: Gbao – Decision on Application to Withdraw Counsel, 4 August 2004.

[171] HRC General Comment No. 32, cited above, § 37. This does not mean that the Court should blindly follow the HRC, especially if the latter reviews its own position in a restrictive way.

[172] Lagerblom , cited above, §§ 50 and 54.

[173] See Constitutional Court judgment, Case no. 196/07; Constitutional Court judgment, Case no. 461/2004; Supreme Court of Justice judgment of 20 November 2014, Case no. 7/14, Supreme Court of Justice judgment of 12 June 2014, Case no. 7/14; Supreme Court of Justice judgment of 1 July 2009, Case no. 279/96.0TAALM.S1; Supreme Court of Justice judgment of 7 April 2005, Case no. 3236/04; Judgment of the Porto Court of Appeal of 12 October 2011, Case no. 1997/08.8TAVCD-A.P1; Judgment of the Coimbra Court of Appeal, of 3 June 2015, Case no. 2320/12.2TALRA-A.C1; Judgment of the Coimbra Court of Appeal of 13 June 2007, Case no. 910/06.1TBCTR.C1.

[174] Correia de Matos v. Portugal (dec.), no. 48188/99, ECHR 2001-XII.

[175] Carlos Correia de Matos v. Portugal , Views, UN Human Rights Committee, Eighty-sixth session: CCPR/C/86/D/1123/2002, adopted on 28 March 2006.

[176] See, for example, the judgment in John Murray v. the United Kingdom , 8 February 1996, Reports of Judgments and Decisions 1996-I, where the Court pointed out that the rationale of the right to silence and the right not to incriminate oneself is to secure the aims of Article 6 and protect the accused from the authorities in order to avoid miscarriages of justice. In Kress v. France [GC], no. 39594/98, ECHR 2001-VI, the Court reiterated that the principle of equality of arms requires that each party be given the opportunity to present his case in a way that does not place him at a substantial disadvantage with regard to his opponent.

[177] See Weh v. Austria , no. 38544/97, 8 April 2004.

[178] From a comparative perspective, autonomy was considered by the Supreme Court of the United States as grounds for the right to decline representation, in Faretta v. California , 422 U. S. 806 (1975). The Supreme Court derived a right to self-representation from the Sixth Amendment, grounding it on the commitment to freedom of choice.

[179] Vergès, Etienne : “Les droits de celui qui décide de se défendre seul et le principe d’égalité” (Cons. Const. 23. nov. 2012), Rev. Pén . Dr. Pén . 2012, p. 917.

[180] See the ICTY case of Prosecutor v. Slobodan Milošević , Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel, 1 November 2004. The accused exercised his right to self-representation from the beginning of the proceedings. Upon a second motion of the prosecution, owing to the deterioration of the accused’s health, the ICTY appointed counsel. However, the accused was still entitled to defend himself whenever his health so permitted.

[181] See, for instance, the judgment in Lloyd and Others v. the United Kingdom , nos. 29798/96 and 37 others, 1 March 2005, where two applicants aged under 21 failed to pay local taxes or court-imposed fines and were sent to prison without being legally represented during the trial.

[182] See, for example, the judgments in the cases of Dikme v. Turkey , no. 20869/92, ECHR 2000-VIII, and Kolu v. Turkey , no. 35811/97, 2 August 2005.

[183] See, for example, the judgment in Granger v. the United Kingdom , 28 March 1990, Series A no. 174, where the applicant faced a five-year custodial sentence.

[184] See, for instance, the judgment in Benham v. the United Kingdom , 10 June 1996, Reports 1996-III, where the criminal proceedings involved complex issues of fact and law.

[185] In the case of Samuel Hinga Norman , the Special Court for Sierra Leone (SCSL) held that six factors were to be taken into consideration when deciding whether an accused’s right to self-representation should be limited. Amongst others, it stressed the public interest in seeing the trial completed swiftly and a possible tension between allowing one accused’s right to self-representation and the right of his co-accused to a fair and swift trial. See the SCSL case of Prosecutor v. Samuel Hinga Norman , Case No. SCSL-04-14-T, Decision of 8 June 2004 on the application of Samuel Hinga Norman for self-representation under Article 17(4)(d) of the Statute of the Special Court.