Pre-Trial [ECHR]

Burden of Proof

In Salabiaku v France the accused was presumed in certain drug offences to be in possession with knowledge and intent to import when found in possession.

Presumptions of law or fact operate in every legal system. Clearly, the Convention does not prohibit such presumptions in principle. It does however require the contracting states to remain within certain limits in this respect as regards criminal law.

There was no violation of Article 6.2 because there was evidence that the accused was aware that he was in possession of the drugs. The court emphasised the need to look at the totality of the facts and circumstances. The presumption was rebuttable.

Imputation of Guilt

Article 2 requires the person not to be treated as guilty until found guilty under a proper process of law. The public may be informed of the investigation but there must be no imputation of guilt.

In Lutz v Germany persons who had been acquitted sought reimbursement of expenses when statements are made indicating a probability of guilt. This was not in breach provided it referred only to a suspicion.

In Sekanina v Austria the circumstances were similar, but the court indicated that the acquittal did not affect the continuing suspicion of having committed murder. The statement breached Article 6.2.

Similarly in Allen v UK, an acquittal for manslaughter of the applicant’s child was based on the weakness of medical evidence. The acquittal was seen to be based on a technicality rather than the merits and the refusal of compensation for miscarriage of justice did not breach article 6.2. There was no imputation of guilt, unlike the earlier cases.

The use of paraphernalia get up dress or appearance implying guilt may breach Article 6.2. In Titarenko v Ukraine a cage was argued to interfere with communication with the lawyer. However, it was found under the circumstances that there was a justifiable security risk.

Confession by Force

Evidence procured by torture or other inhuman and degrading treatment may breach article 3 and article 6. A distinction is made between such behaviour and other evidence procured illegally. Evidence cured by torturing degrading treatment is excluded.

In Gafgen v Germany a distinction was drawn between a confession obtained by torture or by degrading treatment/ill-treatment and evidence which follows from it. Evidence flowing from torture is excluded.  Evidence flowing from inhuman and degrading treatment is not necessarily excluded. A trial might not necessarily be unfair if a conviction is obtained on the basis of other evidence. This is particularly so if there are other proper safeguards to ensure a fair trial. This was criticised by dissenting judges.

In Othman v UK the court confirmed that evidence procured from a third by way of torture must be excluded

In El Haski v Belgium evidence procured from outside the state abroad, where there is a risk that it was procured by torture should be carefully examined and excluded if this is a real risk.

Time and Facilities to run Defence.

The accused must have sufficient time and facilities to prepare his defence. In Hadjianastassiou v Greece, the time or appeal had lapsed by the time for reasons the decision was given. Article 6.3 was found to be breached.

The accused has the right to defend himself in person or by legal representatives of his choice. If he does not have means to pay for legal assistance he has the right to be given it by the state when the interests of justice so require.

The requirements of Article 6.3 concerning the rights of the defence are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6.1 of the Convention (Gäfgen v. Germany [GC], 2010,.169; Sakhnovskiy v. Russia [GC], 2010,.94).

The specific guarantees laid down in Article 6.3 exemplify the notion of fair trial in respect of typical procedural situations which arise in criminal cases, but their intrinsic aim is always to ensure, or to contribute to ensuring, the fairness of the criminal proceedings as a whole. The guarantees enshrined in Article 6.3 are therefore not an end in themselves, and they must accordingly be interpreted in the light of the function which they have in the overall context of the proceedings (Ibrahim and Others v. the United Kingdom [GC], 2016,.251; Mayzit v. Russia, 2005,.77; Can v. Austria, Commission report of 12 July 1984,.48).

 Information on the nature and cause of the accusation

(Article 6.3 (a))

Article 6.3 (a) of the Convention
“3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;”

Charged with a criminal offence (6-3) – Rights of defence (6-3)
Information on nature and cause of accusation (6-3-a) – Prompt information (6-3-a) – Information in language understood (6-3-a) – Information in detail (6-3-a)

The scope of Article 6.3 (a) must be assessed in the light of the more general right to a fair hearing guaranteed by Article 6.1 of the Convention. In criminal matters the provision of full, detailed information concerning the charges against a defendant, and consequently the legal characterisation that the court might adopt in the matter, is an essential prerequisite for ensuring that the proceedings are fair (Pélissier and Sassi v. France [GC], 1999,.52; Sejdovic v. Italy [GC], 2006,.90; Varela Geis v. Spain, 2013,.42).

Sub-paragraphs (a) and (b) of Article 6.3 are connected in that the right to be informed of the nature and the cause of the accusation must be considered in the light of the accused’s right to prepare his defence (Pélissier and Sassi v. France [GC], 1999,.54; Dallos v. Hungary, 2001,.47).

Information about the charge

Article 6.3 (a) points to the need for special attention to be paid to the notification of the “accusation” to the defendant. Particulars of the offence play a crucial role in the criminal process, in that it is from the moment of their service that the suspect is formally put on written notice of the factual and legal basis of the charges against him (Pélissier and Sassi v. France [GC], 1999,.51; Kamasinski v. Austria, 1989,.79).

Article 6.3 (a) affords the defendant the right to be informed not only of the “cause” of the accusation, that is to say, the acts he is alleged to have committed and on which the accusation is based, but also of the “nature” of the accusation, that is, the legal characterisation given to those acts (Mattoccia v. Italy, 2000,.59; Penev v. Bulgaria, 2010, §§ 33 and 42).

The information need not necessarily mention the evidence on which the charge is based (X.
v. Belgium, Commission decision of 9 May 1977; Collozza and Rubinat v. Italy, Commission report of 5 May 1983).

Article 6.3 (a) does not impose any special formal requirement as to the manner in which the accused is to be informed of the nature and cause of the accusation against him (Pélissier and Sassi v. France [GC], 1999,.53; Drassich v. Italy, 2007,.34; Giosakis v. Greece (no. 3), 2011,.29). In this connection, an indictment plays a crucial role in the criminal process, in that it is from the moment of its service that the defendant is formally put on written notice of the factual and legal basis of the charges against him or her (Kamasinski v. Austria, 1989,.79).

The duty to inform the accused rests entirely on the prosecution and cannot be complied with passively by making information available without bringing it to the attention of the defence (Mattoccia v. Italy, 2000,.65; Chichlian and Ekindjian v. France, Commission report of 16 March 1989,
§ 71).

Information must actually be received by the accused; a legal presumption of receipt is not sufficient (C. v. Italy, Commission decision of 11 May 1988).

If the situation complained of is attributable to the accused’s own conduct, the latter is not in a position to allege a violation of the rights of the defence (Erdogan v. Turkey, Commission decision of 9 July 1992; Campbell and Fell v. the United Kingdom, 1984,.96).

In the case of a person with mental difficulties, the authorities are required to take additional steps to enable the person to be informed in detail of the nature and cause of the accusation against him (Vaudelle v. France, 2001,.65).

Reclassification of the charge

The accused must be duly and fully informed of any changes in the accusation, including changes in its “cause”, and must be provided with adequate time and facilities to react to them and organise his defence on the basis of any new information or allegation (Mattoccia v. Italy, 2000,.61; Bäckström and Andersson v. Sweden (dec.), 2006; Varela Geis v. Spain, 2013,.54).

Information concerning the charges made, including the legal characterisation that the court might adopt in the matter, must either be given before the trial in the bill of indictment or at least in the course of the trial by other means such as formal or implicit extension of the charges. Mere reference to the abstract possibility that a court might arrive at a different conclusion from the prosecution as regards the qualification of an offence is clearly not sufficient (I.H. and Others v. Austria, 2006,.34).

A reclassification of the offence is considered to be sufficiently foreseeable to the accused if it concerns an element which is intrinsic to the accusation (De Salvador Torres v. Spain, 1996,.33; Sadak and Others v. Turkey (no. 1), 2001, §§ 52 and 56; Juha Nuutinen v. Finland, 2007,.32). Whether the elements of the reclassified offence were debated in the proceedings is a further relevant consideration (Penev v. Bulgaria, 2010,.41).

In the case of reclassification of facts during the course of the proceedings, the accused must be afforded the possibility of exercising his defence rights in a practical and effective manner, and in good time (Pélissier and Sassi v. France [GC], 1999,.62; Block v. Hungary, 2011,.24; Haxhia v. Albania, 2013, §§ 137-138; Pereira Cruz and Others v. Portugal, 2018,.198).
Defects in the notification of the charge could be cured in the appeal proceedings if the accused has the opportunity to advance before the higher courts his defence in respect of the reformulated charge and to contest his conviction in respect of all relevant legal and factual aspects (Dallos v. Hungary, 2001, §§ 49-52; Sipavičius v. Lithuania, 2002, §§ 30-33; Zhupnik v. Ukraine, 2010, §§ 39-43; I.H. and Others v. Austria, 2006, §§ 36-38; Gelenidze v. Georgia, 2019,.30).

“In detail”

The adequacy of the information must be assessed in relation to Article 6.3 (b), which confers on everyone the right to have adequate time and facilities for the preparation of their defence, and in the light of the more general right to a fair hearing enshrined in Article 6.1 (Mattoccia v. Italy, 2000,
§ 60; Bäckström and Andersson v. Sweden (dec.), 2006).

While the extent of the “detailed” information varies depending on the particular circumstances of each case, the accused must at least be provided with sufficient information to understand fully the extent of the charges against him, in order to prepare an adequate defence (Mattoccia v. Italy, 2000,
§ 60). For instance, detailed information will exist when the offences of which the defendant is accused are sufficiently listed; the place and the date of the offence is stated; there is a reference to the relevant Articles of the Criminal Code, and the name of the victim is mentioned (Brozicek v. Italy,1989,.42).

Some specific details of the offence may be ascertainable not only from the indictment but also from other documents prepared by the prosecution in the case and from other file materials (Previtiv. Italy (dec.), 2009,.208). Moreover, factual details of the offence may be clarified and specified during the proceedings (Sampech v. Italy (dec.), 2015,.110; Pereira Cruz and Others v. Portugal, 2018,.198).

“Promptly”

The information must be submitted to the accused in good time for the preparation of his defence, which is the principal underlying purpose of Article 6.3 (a) (C. v. Italy, Commission decision of 11 May 1988, where the notification of charges to the applicant four months before his trial was deemed acceptable; see, by contrast, Borisova v. Bulgaria, 2006, §§ 43-45, where the applicant had only a couple of hours to prepare her defence without a lawyer).
In examining compliance with Article 6.3 (a), the Court has regard to the autonomous meaning of the words “charged” and “criminal charge”, which must be interpreted with reference to the objective rather than the formal situation (Padin Gestoso v. Spain (dec.), 1999; Casse v. Luxembourg, 2006,.71).

“Language”

If it is shown or there are reasons to believe that the accused has insufficient knowledge of the language in which the information is given, the authorities must provide him with a translation (Brozicek v. Italy, 1989,.41; Tabaï v. France (dec.), 2004).

Whilst Article 6.3 (a) does not specify that the relevant information should be given in writing or translated in written form for a foreign defendant, a defendant not familiar with the language used by the court may be at a practical disadvantage if he is not also provided with a written translation of the indictment into a language which he understands (Hermi v. Italy [GC], 2006,.68; Kamasinski v. Austria, 1989,.79).
However, sufficient information on the charges may also be provided through an oral translation of the indictment if this allows the accused to prepare his defence (ibid.,.81; Husain v. Italy (dec.), 2005).

There is no right under this provision for the accused to have a full translation of the court files (X. v. Austria, Commission decision of 29 May 1975).
The cost incurred by the interpretation of the accusation must be borne by the State in accordance with Article 6.3 (e), which guarantees the right to the free assistance of an interpreter (Luedicke, Belkacem and Koç v. Germany, 1978,.45).

Preparation of the defence (Article 6.3 (b))

Article 6.3 (b) of the Convention
“3. Everyone charged with a criminal offence has the following minimum rights:
…
(b) to have adequate time and facilities for the preparation of his defence;”
Charged with a criminal offence (6-3) – Rights of defence (6-3)
Preparation of defence (6-3-b) – Adequate time (6-3-b) – Adequate facilities (6-3-b) – Access to relevant files (6-3-b)

General considerations

The “rights of defence”, of which Article 6.3 (b) gives a non-exhaustive list, have been instituted above all to establish equality, as far as possible, between the prosecution and the defence. The facilities which must be granted to the accused are restricted to those which assist or may assist him in the preparation of his defence (Mayzit v. Russia, 2005,.79).

Article 6.3 (b) of the Convention concerns two elements of a proper defence, namely the question of facilities and that of time. This provision implies that the substantive defence activity on the accused’s behalf may comprise everything which is “necessary” to prepare the trial. The accused must have the opportunity to organise his defence in an appropriate way and without restriction as to the ability to put all relevant defence arguments before the trial court and thus to influence the outcome of the proceedings (Can v. Austria, Commission report of 12 July 1984,.53; Gregačević v. Croatia, 2012,.51).

The issue of adequacy of the time and facilities afforded to an accused must be assessed in the light of the circumstances of each particular case (Iglin v. Ukraine, 2012,.65; Galstyan v. Armenia, 2007,.84).

Adequate time

When assessing whether the accused had adequate time for the preparation of his defence, particular regard has to be had to the nature of the proceedings, as well as the complexity of the case and the stage of the proceedings (Gregačević v. Croatia, 2012,.51).

Article 6.3 (b) protects the accused against a hasty trial (Kröcher and Möller v. Switzerland, Commission decision of 9 July 1981; Bonzi v. Switzerland, Commission decision of 12 July 1978; Borisova v. Bulgaria, 2006,.40; Malofeyeva v. Russia, 2013,.115; Gafgaz Mammadov v. Azerbaijan, 2015,.76-82). Although it is important to conduct proceedings at a good speed, this should not be done at the expense of the procedural rights of one of the parties (OAO Neftyanaya Kompaniya Yukos v. Russia, 2011,.540).

In determining whether Article 6.3 (b) has been complied with, account must be taken also of the usual workload of legal counsel; however, it is not unreasonable to require a defence lawyer to arrange for at least some shift in the emphasis of his work if this is necessary in view of the special urgency of a particular case (Mattick v. Germany (dec.), 2005). In this context, in a case in which the applicant and his defence counsel had had five days to study a six-volume case file of about 1,500 pages, the Court did not consider that the time allocated to the defence to study the case file was enough to protect the essence of the right guaranteed by Article 6 §§ 1 and 3 (b). The Court took into account the fact that in the appeal the applicant had analysed the case material in detail, that he had been represented before the appeal court by two lawyers, who confirmed that they had had enough time to study the file, and that the applicant had not been limited in the number and duration of his meetings with the lawyers (Lambin v. Russia, 2017, §§ 43-48).

Article 6.3 (b) of the Convention does not require the preparation of a trial lasting over a certain period of time to be completed before the first hearing. The course of trials cannot be fully charted in advance and may reveal elements which had not hitherto come to light and require further preparation by the parties (Mattick v. Germany (dec.), 2005).

An issue with regard to the requirement of “adequate time” under Article 6.3 (b) may arise with regard to the limited time for the inspection of a file (Huseyn and Others v. Azerbaijan, 2011,
§ 174-178; Iglin v. Ukraine, 2012, §§ 70-73; see Nevzlin v. Russia, 2022, §§ 144-150, where the defence was given two weeks, which included weekends and holidays, to examine a 19,000-page case file involving accusations concerning several episodes of murder and attempted murder), or a short period between the notification of charges and the holding of the hearing (Vyerentsov v. Ukraine, 2013,§§ 75-77). Furthermore, the defence must be given additional time after certain occurrences in the proceedings in order to adjust its position, prepare a request, lodge an appeal, etc. (Miminoshvili v. Russia, 2011,.141). Such “occurrences” may include changes in the indictment (Pélissier and Sassi v. France [GC], 1999,.62), introduction of new evidence by the prosecution (G.B. v. France, 2001,
§§ 60-62), or a sudden and drastic change in the opinion of an expert during the trial (ibid., §§ 69-70).
An accused is expected to seek an adjournment or postponement of a hearing if there is a perceived problem with the time allowed (Campbell and Fell v. the United Kingdom, 1984,.98; Bäckström and Andersson v. Sweden (dec.), 2006; Craxi v. Italy (no. 1), 2002,.72), save in exceptional circumstances (Goddi v. Italy, 1984,.31) or where there is no basis for such a right in domestic law and practice (Galstyan v. Armenia, 2007,.85).

In certain circumstances a court may be required to adjourn a hearing of its own motion in order to give the defence sufficient time (Sadak and Others v. Turkey (no. 1), 2001,.57; Sakhnovskiyv. Russia [GC], 2010, §§ 103 and 106).

In order for the accused to exercise effectively the right of appeal available to him, the national courts must indicate with sufficient clarity the grounds on which they based their decision (Hadjianastassiou v. Greece, 1992,.33). When a fully reasoned judgment is not available before the expiry of the time-limit for lodging an appeal, the accused must be given sufficient information in order to be able to make an informed appeal (Zoon v. the Netherlands, 2000, §§ 40-50; Baucher v. France, 2007, §§ 46-51).

States must ensure that everyone charged with a criminal offence has the benefit of the safeguards of Article 6.3. Putting the onus on convicted appellants to find out when an allotted period of time starts to run or expires is not compatible with the “diligence” which the Contracting States must exercise to ensure that the rights guaranteed by Article 6 are enjoyed in an effective manner (Vacher v. France, 1996,.28).

Adequate Facilities

The “facilities” which everyone charged with a criminal offence should enjoy include the opportunity to acquaint himself, for the purposes of preparing his defence, with the results of investigations carried out throughout the proceedings (Huseyn and Others v. Azerbaijan, 2011,.175; OAO Neftyanaya Kompaniya Yukos v. Russia, 2011,.538).

The States’ duty under Article 6.3 (b) to ensure the accused’s right to mount a defence in criminal proceedings includes an obligation to organise the proceedings in such a way as not to prejudice the accused’s power to concentrate and apply mental dexterity in defending his position. Where the defendants are detained, the conditions of their detention, transport, catering and other similar arrangements are relevant factors to consider in this respect (Razvozzhayev v. Russia and Ukraine and Udaltsov v. Russia, 2019,.252).

In particular, where a person is detained pending trial, the notion of “facilities” may include such conditions of detention that permit the person to read and write with a reasonable degree of concentration (Mayzit v. Russia, 2005,.81; Moiseyev v. Russia, 2008,.221). It is crucial that both the accused and his defence counsel should be able to participate in the proceedings and make submissions without suffering from excessive tiredness (Barberà, Messegué and Jabardo v. Spain, 1988,.70; Makhfi v. France, 2004,.40; Fakailo (Safoka) and Others v. France, 2014,.50). Thus, in Razvozzhayev v. Russia and Ukraine and Udaltsov v. Russia, 2019, §§ 253-254, the Court found that the cumulative effect of exhaustion caused by lengthy prison transfers – in poor conditions and with less than eight hours of rest, repeated for four days a week over a period of more than four months – seriously undermined the applicant’s ability to follow the proceedings, make submissions, take notes and instruct his lawyers. In these circumsatnces, and given that insufficient consideration had been given to the applicant’s requests for a hearing schedule that might have been less intensive, the Court considered that he had not been afforded adequate facilities for the preparation of his defence, which had undermined the requirements of a fair trial and equality of arms, contrary to the requirements of Article 6 §§ 1 and 3 (b) of the Convention.

The facilities which must be granted to the accused are restricted to those which assist or may assist him in the preparation of his defence (Padin Gestoso v. Spain (dec.), 1999; Mayzit v. Russia, 2005,.79). In some instances, that may relate to the necessity to ensure the applicant a possibility to obtain evidence in his favour (Lilian Erhan v. the Republic of Moldova, §§ 20-21, where the police refused to accompany the applicant to a hospital to obtain a biological test to challenge the allegations of drunk-driving).

Article 6.3 (b) guarantees also bear relevance for an accused’s access to the file and the disclosure of evidence, and in this context they overlap with the principles of the equality of arms and adversarial trial under Article 6.1 (Rowe and Davis v. the United Kingdom [GC], 2000,.59; Leas v. Estonia, 2012,.76).14 An accused does not have to be given direct access to the case file, it being sufficient for him to be informed of the material in the file by his representatives (Kremzow v. Austria, 1993,.52). However, an accused’s limited access to the court file must not prevent the evidence being made available to the accused before the trial and the accused being given an opportunity to comment on it through his lawyer in oral submissions (Öcalan v. Turkey [GC], 2005,.140).

When an accused has been allowed to conduct his own defence, denying him access to the case file amounts to an infringement of the rights of the defence (Foucher v. France, 1997, §§ 33-36).

In order to facilitate the conduct of the defence, the accused must not be hindered in obtaining copies of relevant documents from the case file and compiling and using any notes taken (Rasmussen v. Poland, 2009, §§ 48-49; Moiseyev v. Russia, 2008, §§ 213-218; Matyjek v. Poland, 2007,.59;
Seleznev v. Russia, 2008, §§ 64-69).

“Facilities” provided to an accused include consultation with his lawyer (Campbell and Fell v. the United Kingdom, 1984,.99; Goddi v. Italy, 1984,.31). The opportunity for an accused to confer with his defence counsel is fundamental to the preparation of his defence (Bonzi v. Switzerland, Commission decision of 12 July 1978; Can v. Austria, Commission report of 12 July 1984,.52). Thus, an issue under Article 6.3 (b) arises if the placement of an accused in a glass cabin during the hearing prevents his or her effective consultation with a lawyer (Yaroslav Belousov v. Russia, 2016, §§ 148- 153).

Right to defend oneself in person or through legal assistance

(Article 6.3)

Article 6.3 (c) of the Convention
“3. Everyone charged with a criminal offence has the following minimum rights:
…
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;”

Scope of application

Any person subject to a criminal charge must be protected by Article 6.3 (c) at every stage of the proceedings (Imbrioscia v. Switzerland, 1993,.37). This protection may thus become relevant even before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with the provisions of Article 6 (Öcalan v. Turkey [GC], 2005,§ 131; Ibrahim and Others v. the United Kingdom [GC], 2016,.253; Magee v. the United Kingdom, 2000,.41).

While Article 6.3 (b) is tied to considerations relating to the preparation of the trial, Article 6§ 3 (c) gives the accused a more general right to assistance and support by a lawyer throughout the whole proceedings (Can v. Austria, Commission report of 12 July 1984,.54). Nevertheless, the manner in which Article 6.3 (c) is to be applied in the pre-trial phase (during the preliminary investigation) depends on the special features of the proceedings involved and on the circumstances of the case (Ibrahim and Others v. the United Kingdom [GC], 2016,.253; Brennan v. the United Kingdom, 2001,.45; Berliński v. Poland, 2002,.75).

Similarly, the manner in which Article 6.3 (c) is to be applied in relation to appellate or cassation courts depends upon the special features of the proceedings involved (Meftah and Others v. France [GC], 2002,.41). Account must be taken of the entirety of the proceedings conducted in the domestic legal order and of the role of the appellate or cassation court therein (ibid.; Monnell and Morris v. the United Kingdom, 1985,.56). It is necessary to consider matters such as the nature of the leave-to- appeal procedure and its significance in the context of the criminal proceedings as a whole, the scope of the powers of the court of appeal, and the manner in which the applicant’s interests were actually presented and protected before the court of appeal (ibid.).

Right to defend oneself

The object and purpose of Article 6 of the Convention taken as a whole show that a person charged with a criminal offence is entitled to take part in the hearing (Zana v. Turkey [GC], 1997,.68; Monnell and Morris v. the United Kingdom, 1985,.58).16 Closely linked with this right Article 6.3 (c) offers the accused the possibility of defending himself in person. It will therefore normally not be contrary to the requirements of Article 6 if an accused is self-represented in accordance with his or her own will, unless the interests of justice require otherwise (Galstyan v. Armenia, 2007,.91).

Article 6 §§ 1 and 3 (c) do not necessarily give the accused the right to decide the manner in which one’s defence is assured (Correia de Matos v. Portugal (dec.), 2001). The choice between two alternatives mentioned in Article 6.3 (c), namely, the applicant’s right to defend oneself in person or to be represented by a lawyer of one’s own choosing, or in certain circumstances one appointed by the court, depends in principle upon the applicable domestic law or rules of court. In making this decision, Member States enjoy a margin of appreciation, albeit limited (Correia de Matos v. Portugal [GC], 2018,.122).

In light of these principles, the Court first examines whether relevant and sufficient grounds were provided for the legislative choice applied in the particular case. Second, even if relevant and sufficient grounds were provided, it is still necessary to examine, in the context of the overall assessment of fairness of the criminal proceedings, whether the domestic courts, when applying the impugned rule, also provided relevant and sufficient grounds for their decisions. In the latter connection, it will be relevant to assess whether an accused was afforded scope in practice to participate effectively in his or her trial (ibid.,.143).

In Correia de Matos v. Portugal [GC] (2018, §§ 144-169) the Court took into account as a whole the procedural context in which the requirement of mandatory representation was applied, including whether the accused remained able to intervene in person in the proceedings. It further took into account the margin of appreciation enjoyed by the State and considered the reasons for the impugned choice of the legislature to be both relevant and sufficient. Since, in addition, there was no basis on which to find that the criminal proceedings against the applicant had been unfair, the Court concluded that there had been no violation of Article 6 §§ 1 and 3 (c) of the Convention.

Furthermore, where the accused chooses to defend himself, he deliberately waives his right to be assisted by a lawyer and is considered to be under a duty to show diligence in the manner in which he conducts his defence (Melin v. France, 1993,.25). In particular, it would overstrain the concept of the right of defence of those charged with a criminal offence if it were to be assumed that they could not be prosecuted when, in exercising that right, they intentionally aroused false suspicions of punishable behaviour concerning a witness or any other person involved in the criminal proceedings (Brandstetter v. Austria, 1991,.52). The mere possibility of an accused being subsequently prosecuted on account of allegations made in his defence cannot be deemed to infringe his rights under Article 6.3 (c). The position might be different if, as a consequence of national law or practice in this respect being unduly severe, the risk of subsequent prosecution is such that the defendant is genuinely inhibited from freely exercising his defence rights (ibid.,.53).