<\/span><\/h3>\nWhen 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 (Grega\u010devi\u0107 v. Croatia, 2012,.51).<\/p>\n
Article 6.3 (b) protects the accused against a hasty trial (Kr\u00f6cher and M\u00f6ller 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).<\/p>\n
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 \u00a7\u00a7 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, \u00a7\u00a7 43-48).<\/p>\n
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).<\/p>\n
An issue with regard to the requirement of \u201cadequate time\u201d 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,
\n\u00a7 174-178; Iglin v. Ukraine, 2012, \u00a7\u00a7 70-73; see Nevzlin v. Russia, 2022, \u00a7\u00a7 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,\u00a7\u00a7 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 \u201coccurrences\u201d may include changes in the indictment (P\u00e9lissier and Sassi v. France [GC], 1999,.62), introduction of new evidence by the prosecution (G.B. v. France, 2001,
\n\u00a7\u00a7 60-62), or a sudden and drastic change in the opinion of an expert during the trial (ibid., \u00a7\u00a7 69-70).
\nAn 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; B\u00e4ckstr\u00f6m 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).<\/p>\n
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, \u00a7\u00a7 103 and 106).<\/p>\n
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, \u00a7\u00a7 40-50; Baucher v. France, 2007, \u00a7\u00a7 46-51).<\/p>\n
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 \u201cdiligence\u201d 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).<\/p>\n
<\/span>Adequate Facilities<\/span><\/h3>\nThe \u201cfacilities\u201d 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).<\/p>\n
The States\u2019 duty under Article 6.3 (b) to ensure the accused\u2019s 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\u2019s 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).<\/p>\n
In particular, where a person is detained pending trial, the notion of \u201cfacilities\u201d 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 (Barber\u00e0, Messegu\u00e9 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, \u00a7\u00a7 253-254, the Court found that the cumulative effect of exhaustion caused by lengthy prison transfers \u2013 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 \u2013 seriously undermined the applicant\u2019s 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\u2019s 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 \u00a7\u00a7 1 and 3 (b) of the Convention.<\/p>\n
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, \u00a7\u00a7 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).<\/p>\n
Article 6.3 (b) guarantees also bear relevance for an accused\u2019s 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\u2019s 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 (\u00d6calan v. Turkey [GC], 2005,.140).<\/p>\n
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, \u00a7\u00a7 33-36).<\/p>\n
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, \u00a7\u00a7 48-49; Moiseyev v. Russia, 2008, \u00a7\u00a7 213-218; Matyjek v. Poland, 2007,.59;
\nSeleznev v. Russia, 2008, \u00a7\u00a7 64-69).<\/p>\n
\u201cFacilities\u201d 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, \u00a7\u00a7 148- 153).<\/p>\n
<\/span>Right to defend oneself in person or through legal assistance<\/span><\/h3>\n(Article 6.3)<\/p>\n
Article 6.3 (c) of the Convention
\n\u201c3. Everyone charged with a criminal offence has the following minimum rights:
\n…
\n(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;\u201d<\/p>\n
Scope of application<\/p>\n
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 (\u00d6calan v. Turkey [GC], 2005,\u00a7 131; Ibrahim and Others v. the United Kingdom [GC], 2016,.253; Magee v. the United Kingdom, 2000,.41).<\/p>\n
While Article 6.3 (b) is tied to considerations relating to the preparation of the trial, Article 6\u00a7 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; Berli\u0144ski v. Poland, 2002,.75).<\/p>\n
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\u2019s interests were actually presented and protected before the court of appeal (ibid.).<\/p>\n
<\/span>Right to defend oneself<\/span><\/h3>\nThe 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).<\/p>\n
Article 6 \u00a7\u00a7 1 and 3 (c) do not necessarily give the accused the right to decide the manner in which one\u2019s defence is assured (Correia de Matos v. Portugal (dec.), 2001). The choice between two alternatives mentioned in Article 6.3 (c), namely, the applicant\u2019s right to defend oneself in person or to be represented by a lawyer of one\u2019s 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).<\/p>\n
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).<\/p>\n
In Correia de Matos v. Portugal [GC] (2018, \u00a7\u00a7 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 \u00a7\u00a7 1 and 3 (c) of the Convention.<\/p>\n
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).<\/p>\n\n
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