The defence lawyer in the aspect of the decisions of the

European Court of Human Rights


The agreement of Human Rights of the Council of Europe established the European Board of Human Rights and the European Court of Human Rights, this way it has completed the existing legal remedy system in the member states with an international, appealing forum which is above states. The minutes 11 complementing the European Convention placed the permanently working Court of Human Rights instead of the Board and Court.

The Court, in the majority or the Council of Europe owing direct force, is the highest explanatory forum of the Agreement which decisions often lead to the modification of law, practice of the law. Thus its decisions in connection with the defence lawyer (the defence) can be a guidance, and – in my opinion – should be a guidance for EU compatibility, making efforts to legal harmonisation[1]. That’s why judicial decisions in the aspect of criminal defence in the past decades (reaching nearly a thousand judicial decisions and approximately fifty thousand board decisions)chronological survey can be useful – naturally not comprehensive nature  - both for the examination of the current Hungarian regulation and for the creation of the national (or foreign regulations) de lege ferenda suggestions[2].


The analysis of the decisions of the Court in connection with the defence lawyer:


The decisions connected to the defence lawyer[3]can be classified by several aspects. Partly on the basis of infringed sections of the Agreement where section 5 (right for freedom and safety), section 6 (fair proceedings), section 8 (honouring private and family life), section 10 (freedom of speech) and section 25 (personal right for complaint) belong. Partly – and I find it more important and it should be studied more thoroughly – from the aspect of infringed human rights.

For clearer understanding the components of certain human rights can be classified as follows:

I. Section 5:     right for freedom and safety

Including emergency provisions emphasising arrest

                 (including custody).

              1 circumstances of detention

              2 excluding supplementary institution

              3 infringing reasonable period

              4 lack of judicial decision

II. Section 6:    fair proceedings
                        Including:            1 finishing in a reasonable period

                                                  2 presumption of innocence

Emphasising:       3 equality of arms

Consisting:          a) right for defence lawyer, legal representative and effective defence

b) presence of the defence

c) enough time for the preparations for the defence

d) learning the case by the defence

e) defensive right for reflecting

 f) balance of experts (prosecutor - defence)

g) defensive legal remedy

III. Section 8: respecting private life (private secret)

1 not controlling correspondence between the defence lawyer and accused.

2  avoiding tapping the defence lawyer’s phone calls

IV. Section 10: right for the freedom of speech
Including: The defence lawyer’s statements connected to the criminal procedure.
V.  Right for legal remedy

Including: 1 right for effective remedy (section 13)

 2 right for personal complaint (section 25)

The characteristics of the groups:

ad. I. (freedom and safety)

The right for freedom and safety concerns the defence lawyer in so far as it is one of the most important human rights, in case of infringing freedom one can almost always meet a defence lawyer in the proceedings. The decisions themselves are firstly about the rights of the accused but they touch the presumption of innocence, the burden of proof, the right for self-determination of the accused. This happened in the case against W. SWITZERLAND during which the Court put it down in its judgement (26.01.1993.) that the acting authorities didn’t infringe the reasonable deadline, which is in the 3rd point in section 5 of the Agreement, since the dragging of the controversial detention was caused primarily by the complication of the case and the petitioner’s attitude of refusing the co-operation with the authorities.

Judge Pettiti attached his dissenting opinion to the judgement differing on the decision, whose essence is that the burden of proof can’t be reversed and the detainee can’t be expected to prove that he won’t escape which proof is practically impossible. He made it clear that construing section 5 and the custody proceeding the judgement. We have to consider that the freedom, the rule and the custody are exceptions and the custody proceeding the judgement can’t harm the presumption of innocence. This presumption refers not only to the fact that the judge shouldn’t consider the accused guilty or he can’t be presented as guilty one before a third person but it also concerns the circumstance that possibility should be given to the accused to deal with his own situation as an accused until the proceedings. As an extreme case a person, who admits his being guilty, must be given possibility to stay a free man, to control his professional and family life and to take the necessary steps after being accused. The custody proceeding the judgement can’t be adopted as an early punishment; it cannot either reflect the judge’s feelings or opinion about the guiltiness of the accused.

Refusing the co-operation is not suitable for verifying the lengthening of the custody for such a long term. The accused has the right for taking the risk of his negative behaviour during the investigation which can be disadvantageous during the proceedings.

During the previous investigation the accused has to stay free as a rule. The Agreement’s 3rd point of section 5 includes the fight for freedom until the proceedings and wisely allows that this freedom should be attached to the guarantee of the presence in the proceedings.

The detailed description of the case also raises the theoretical question whether what kind of role the certain judicial opinion (which were set against decisions) can have or has for the tendency should be followed by the certain states. Surveying several decisions and regulations, in my opinion personal arguments can’t be disregarded though they’re not rules but as theoretical reasoning can be considered when creating rule parts of certain states.

Obviously there can also be overlaps between the projections of certain Human Rights’ decisions such as in the judgement of KAMPANIS GREECE (13.07.1995.) where the Court stated the petitioner’s right for freedom and safety (Agreement section 5) was infringed by not allowing the personal participation before the Prosecution of the Court of Appeal making decision in the question of temporary arresting in the proceedings.

The right for presence and personal freedom are interpreted in fair procedure. The overlap is confirmed by the fact that the decision mentions that the equality of arms, explained also in the fair procedure (section 6), must be enforced not only in the main stage but in the proceedings of custody (as the prosecutor was present but the accused wasn’t). The accused  one (defence) has to be given the possibility for replying for the prosecutor’s proposal in this special proceedings.

Similar joining can be found in the case of BENHAM UNITED KINGDOM (closed in 10.06.1996.). Here the Court stated again that the British authorities didn’t infringe the Agreement’s 1st point of section 5 (right for freedom and safety) by the fact that the petitioner was kept confined and sentenced to custody by the magistral  Court because of not paying the poll tax. On the other hand the 1st point in connection with 3rd/c in section 6 was infringed by not ensuring the right of the petitioner for using the help of any legal representatives before the magistral Court taken place in the trial.

The petitioner, in the proceeding of not paying the poll tax, didn’t get the help of a defence lawyer, though before the opening of the trial, he asked for one in the Green Form Scheme and at the same time the magistratians could have had the opportunity to appoint a solicitor, who would have performed the defence at the expense of ‘ABWOR’ (a legal representative service) if he had been asked for that.

The Court also examined whether the interest of the jurisdiction had demanded that the petitioner employ a free legal representative before the magistral Court.

The Court thought that in the case when the deprivation of liberty can occur as a sanction, the interests of the jurisdiction demands the co-operation of  the solicitor.

This latest reasoning support my first lines, naming that one of the outstanding human rights – freedom itself demands the solicitor’s existence (free solicitor if necessary) in the procedure as the possible law infringement can be so serious that this element cannot be avoided.

The directions of the ECHR also confirms my de lege ferenda suggestions and my theoretical view point that in the Hungarian regulations in case of custody (and not only the arrest) that the participation of the solicitor should be required.[4]

In the judgement of AERTS BELGIUM (30.07.1998.), the Court also stated the infringement of section 6 besides the infringement of the Agreement’s 1st point of section 5 (right for freedom and safety) because the insane perpetrator was kept in the psychiatric department of law enforcement institution which was unsuitable for compulsory treatment for a long time. Since the Judicial Office of Legal Aid denied the appointment of a legal representative so the petitioner couldn’t turn to the Nullity Chair.

Among the decisions investigating the importance and proportion of detention, in the case of YAHIAOUI FRANCE (20.01.2000.), the Court stated the infringement of the reasonable period, explaining that everybody has the right for being given a judgement  in a reasonable period or being released during the proceedings, which in the case of CABALLERO UNITED KINGDOM, the infringement of section 5 in 2000 was stated, because the arrested petitioner wasn’t allowed to be released on bail till the proceedings because of having a criminal record.

In the case of BARABNOWSKI POLAND, the infringement was also stated by the Court, since the petitioner’s detention was maintained without any judicial decisions, and at the same time the judgement of the petition for being released was dragged on.

ad. II. (fair proceedings)

It can also be seen from the initial chart that the most extensive licences are attached to fair proceedings explained in section 6,and its infringement is the most frequent in connection with the defence lawyer.

The ARTICO ITALY case, which might have been mentioned and quoted the most since it was risen, also belongs to this group, when the Court stated unanimously the infringement of the right for defence – the 3rd paragraph, point c of section 6 -  in its judgement (13.05.1980.) as the petitioner was neither given a defence lawyer , nor an effective defence in the proceedings before the Nullity Chair.[5]

The concerned Italian government argued that the complaint about the lack of the solicitor shouldn’t have been accepted, as Artico didn’t use the possibilities of the legal remedies. Since Artico didn’t give a report about the behaviour of the assigned counsel sent from the Law Society, namely that due to the assigned counsel being involved in too many activities he couldn’t undertake further defence, and he didn’t even provide for real substitution. According to the government Artico didn’t take any steps for that any of the institutions, e.g. the Law Society should force the assigned counsel to accomplish his duty and it didn’t submit any complaints for either the civil right action or disloyal defence.

The Court rejected the Italian government’s argues, for example that the assignment of the defence lawyer completes itself the Agreement’s regulations. It emphasised: the Agreement demands effective defence, which  can’t be completed simply by assigning a counsel, since the assigned counsel can die or can get ill seriously, he can be hindered permanently by his circumstances, or he can keep himself away from his duties. The authorities, if they are informed, are to solve the substitution of the defence lawyer, or they should force him to fulfil his duty. In this present case Artico didn’t have a share in an effective defence before the Nullity Chair.

The point ‘c’ in the 3rd paragraph in section 6 makes compulsory the assignment of a counsel only if the interests of the jurisdiction demand it. In contrast with the government , the Court thought that in Artico’s case, in the interest of  the jurisdiction, a defence lawyer should have been needed. A qualified Defence lawyer would have dealt example with the question of lapse more effectively, thus the lack of the defence lawyer caused a real harm for the petitioner.

The Court emphasised that not all the faults and omissions, committed by the assigned counsel, can be brought against the government. In this present case, the Agreement only excepted from the authorities that they should have provided for the substitution of an assigned counsel or force him to fulfil his duty.

I emphasise among the complex messages of this ever since guiding judicial decision that not a single state can refer to the accused one’s omission in the cases when state obligation is existing and not even in case of assuring effective defence. It is considerable in the course of further changing of the Hungarian regulations, which I think is needed, when a real free of charge and effective defensive institution has to be created, in this case the Hungarian state cannot either refer to accused one’s omission or other argues as  reasons for wriggling out of completing regulations.

In the judgement of PAKELLI GERMANY (25.04.1983.), the Court stated the same breaking of norms after the German Federal Supreme Court denied the assignment of a free counsel for the cassative proceedings of the accused one’s case. This way the adversary system feature didn’t occur besides the prosecutor at present as a lack of defence lawyer.

The lack of effective defence was stated by the Court in the case of GODDI ITALY (09.04.1984.), as the absent detainee’s defence lawyer wasn’t informed in the course of the proceedings before the Court of Appeal of Bologna, so he didn’t take part in that either.

Not only the absence of the original defence lawyer contributed to the lack of an effective defence but the shortage of time of the assigned counsel, assigned all at once for the accused, on the Appeal Proceedings. The new defence lawyer didn’t have either the time or the possibility to study the documents of the case, to prepare the plea, and to get in touch with the accused.

In connection with the experts using the evidence in the case against BÖNISCH AUSTRIA, the Court stated in its unanimous decision (06.05.1985.) that the principal of ‘equality of arms’ issued from the requirements of fair proceedings since the expert assigned by the authorities was emphasised against the expert of the defence.

In the case of  POITRIMOL FRANCE the Court didn’t consider the procedure to be fair, as the Court of Appeal made his decision without the accused one’s report in the case, furthermore the Nullity Chair refused the complaint of the petitioner with the reasons that the person who didn’t obey the warrant for arrest, is not entitled for charging a defence lawyer and using legal remedy against the judgement.

The decision made against KEROJARVI FINNLAND (19.07.1995.) belongs to the right for knowing the case also in the scope of ‘equality of arms’. The Court stated the infringement of the law because the criminal case for compensation being in progress at the Finnish Supreme Court, the petitioner proceeding without a solicitor couldn’t study the documents and he didn’t take any steps to do so.

The Court have already suggested both in this and other cases that the main rules of fair proceedings are in force not only in the criminal procedure and it’s true vice versa: the basic human rights are ‘independent from the procedure’.[6] At the same time it is obvious that the expectation enforced is valid before any courts. It can either be a procedure before a Court of first instance (e.g. English magistrative) or a Court of Appeal of second instance or a Nullity Chair of third instance or a Supreme Court.

The equality of arms is also infringed by the restriction of the defence lawyer’s rights for comments; In the judgement of NIDERÖST – HUBER SWITZERLAND (18.02.1996.) the Court declared the infringement of law since the petitioner wasn’t informed about the Court of Schwyz Canton handed in remarks to the Federal Court and this way he couldn’t make comments before passing the judgement of the Federal Court.

The fair proceedings involve the litigants’ right for knowing all the presented evidences and handed remarks and making comments for them.

The part of the judgement, which refers to the argument – is rather remarkable -, that the Court didn’t consider the fact that the case was a civil action, as the case law of the Court developed in connection with that the requirements derived from the right for adversary system procedure are the same in civil and criminal (administrative and magistrative) cases.[7]

The judgement of VACHER FRANCE (17.12.1996.) case is joined also to the remarks, in which the Court declared the infringement of the law because in the procedure before the French Nullity Chair – as a Forum of legal remedy of third instance – there wasn’t a legal deadline to hand in the preparatory documents, the petitioner wasn’t informed about the day of the proceedings either. This way he was deprived of the opportunity of the real and effective defence.

Here the Court also emphasised what I’ve already stressed in connection with the Artico case that the state should take care of the guarantees of the accused to be carried out. So the fact that the detainee in the criminal case is to be informed about the beginning and the end of certain deadlines, cannot be compared with the obligation towards the real enforce of the guarantee of section 6 by the contracting states.

In the judgement of MANTOVANELLE FRANCE (18.03.1997.) the Court confirmed its viewpoint that the right for fair trial is independent from the procedure namely it’s valid in other procedures too, it means also before the administrative Court. In this case the medical expert opinion assigned by the administrative Court wasn’t prepared in agreement with the principal of adversary system procedure, since the petitioner and his solicitor didn’t get any information about the time of the expert’s actions. Furthermore they didn’t make them possible to take part in the questionings, and the expert’s opinion referred to several documents which couldn’t have been examined.

It has to be ensured that all the parties should be given the chance to express their opinions about all the evidences and remarks which were mentioned in the case to influence the decision of the Court.

Taking into consideration that other procedural guarantees in the 1st point of section 6, similarly to the ensuring the principal of adversary procedure refers only to the judicial proceedings and not in general. From this the abstract principal can also be drawn that in the case of an expert assigned by the Court, the participation on the interviews made by the expert must be made possible for the parties and the documents considered by the expert also must be shown. It is essential to ensure the proper participation in the procedure before the Court to the parties.

It is important to point out that the adversary system is ordered by the practice of the Court to the judicial stage, it cannot be enforced indicated above and in a complete way. The references of the accused and the defence – either Hungarian or foreign – are unfounded and cannot meet with success on the international forum either. This way the adversary system shouldn’t be fitted in any preparatory procedural legal regulation.

On the same day the Court also passed another judgement where the requirement of fair procedure was infringed in the magistral procedure. What happened in the case of FOUCHER FRANCE case was that the access to the criminal documents was denied, refusing to hand out the included documents concerning the petitioner in the summary jurisdiction before the police court where the petitioner defended himself. This way the petitioner’s right for defence and the principal of the equality of clients was broken.

It turns out again from the reasons that the principals of the equality of clients and the equality of arms refer to the judicial stage. The court referred to the fact that since the petitioner was brought to a normal court without preliminary investigation, the question of ensuring the secrecy of the investigation didn’t arise. This could have hindered the enforcement of the law.

I also emphasise in this decision that according to the Court it was important for the petitioner to have access to the file of his case and to get a copy about the included documents to be able to question the parts concerning him in the official report. As he didn’t have such an opportunity the petitioner was not able to prepare his proper defence and the principal of the equality of clients wasn’t enforced.

Getting a copy is an important part which includes the explanation that it is the person’s due to get free copies in the procedure if he has an assigned counsel. Besides the lack of ensuring an effective and free defence lawyer by the state, the Hungarian regulation doesn’t meet these human rights’ requirements because of the anti-constitutional regulation of authorising the copies, and, in my opinion also because of the infringement of the agreement.[8]

The right for making remarks and replying was infringed in the case of VAN ORSHOVEN BELGIUM , the Court stated in its judgement (25.07.1997.) that the fact that the petitioner didn’t have the opportunity to reply to the motion of the prosecutor in the disciplinary procedure before the Nullity Chair, was against the law.[9]

The fair proceedings and the equality of arms theoretically mean the parties’ opportunity to know about all the attached evidences or remarks recorded in the minutes and to have the possibility to make remarks.

In the judgement against BELZIUK POLAND (25.03.1998.), according to the Court’s point of view the Agreement’s1st and 3rd/c points of section 6 were infringed, because against the wish of the petitioner he couldn’t take part in the appeals procedure, but the prosecutor was present and an assigned counsel wasn’t sent officially to him either.

In this case the petitioner’s right for being present on the trial was infringed and also the equality of arms because this principal and the right for adversary procedure demand that the petitioner should be authorised for the participation on the trial and to dispute the prosecutor’s minutes. The inequality couldn’t be corrected not even if the petitioner had sent his remarks in a written form to a local court, considering the fact that the prosecutor was present on the trial and the seriousness of his minutes.

The examination of the decision raises the thought(and also the demand) that in those particular cases where a prosecutor is involved and is present, the judicial procedure can’t be held without a solicitor. Practically the presence of the prosecutor becomes a compulsion to have a defence, otherwise the fair and equal arms procedure can’t be reached either according to the Court’s message or my viewpoint. The Hungarian regulations don’t put it down and don’t make it obligatory for the acting court to join the defence lawyer the proceedings. He has the opportunity to join but   there is no obligation. The accused can also ask for one but there’s no obligation. As far as I’m concerned, I suggest the de lege ferenda obligation of the defence lawyer’s participation parallel to the prosecutor’s participation

Approaching the equality of arms from another side is thought-provoking, namely if the prosecutor isn’t present (e.g. in an offensive procedure or on the second instance) while there’s a defence lawyer, whether the equality of arms enforces. The question can also be raised if there’s only a one-sided viewpoint of the equality of arms or only the accused and defence lawyer’s views can be found in the balance or the other party’s too.

In my point of view an accuser is a participant in the fair procedure whose rights must be followed with attention and guaranteed by the court.

However if the prosecutor gives up his certain rights in a self-determinative way (as example the fight for presence in this present case) cannot involve negative consequences concerning the accused (the defence lawyer). Besides their situation is improved by the institution of ‘favor defensionis’, this can be understood as that. This way I. don’t. find the ‘backwards’ or the opposite direction obligation acceptable to introduce them into the Hungarian regulations either. [10]

The Court made a decision with similar content  and reasons in the judgement against K.D.B. THE NETHERLANDS (27.03.1998.) where the infringement of the 1st point of section 6 was declared because the petitioner wasn’t giver an opportunity to make remarks to the prosecutor’s minute before the proceedings of the Nullity Chair.

The accused-defence order with the documents was infringed in the REINHARDT AND SLIMANE-KAID FRANCE case (31.03.1998.) since the petitioner and his legal representative in the procedure before the Nullity Chair didn’t get those judicial documents before the trial which were available for the prosecutor.

Well before the trial of the Nullity Chair the public prosecutor got the draft of the judgement and the report made by the official judge, in a completely unknown way in the Hungarian practice, which were not sent over to the petitioners or to the legal representatives. This report consists of two parts: the first one contains the statement of the fact, the procedure and the nullity arguments, and second one is the analysis of the case in a legal point of view, moreover it contains an opinion about the merit of the nullity petition.

The Court remarked that the petitioners’ defence counsels – inasmuch as its intention would have been proved – could have acted properly in the case and after the official judge, they had the floor, this way they have the opportunity to learn and dispute the first part of this report. By all means the second part of the report and the legally protected draft of the judgement and the secrecy of the discussion still remained confidential; in the majority of the cases only the direction of the acting judge’s opinion can be learned several days before the proceedings.

On the other hand the complete report and the draft of the judgement were sent to the public prosecutor, but the public prosecutor is not a member of the judge- division. His duty is to take care of using the laws properly if they are clear and in case if they are equivocal to their accurate explanation. He gives the judge some pieces of advice to the acceptable solution in every case and with his authority he can influence their decision. As the report made by the acting judge, the public prosecutor’s role and the result of the case concerning the petitioners are very important, the Court judged unanimously, that the unbalanced situation between the parties and the public prosecutor, isn’t suitable for the requirements of the fair judicial procedure.

As I’ve referred the principal of the equality of arms deduced from the fair procedure appears in the judicial procedure, it is valid there as a whole, including the adversary system, but in the case of DAUD PORTUGAL (12.04.1998.) the Court emphasised in its judgement that the effective defensive requirement,(including the right for presence, knowing the case, practising case advancing licenses, right for complaint, etc.) exists not only in the judicial but already in the preparatory (investigative) stage as well.

According to the Court, the Agreement’s 1st point of section6 (right for fair procedure) was infringed by – connected with the 3rd/c point – that  the petitioner couldn’t get proper and effective legal defence in the investigative and judicial part of the criminal procedure having been involved.

The Court pointed out that the aim of the agreement is not theoretical or illusory but to ensure practical and effective rights, since assigning a counsel in itself doesn’t ensure the efficiency of the legal support for the accused. The state cannot be responsible for all the defaults committed by the assigned counsel. It derives from the legal profession being independent from the state that the behaviour of the defence concerns only the accused and his defence lawyer, should he be whether a defence lawyer or an assigned counsel. The competent national authorities have to interfere – on the basis of the 3rd/c point of section 6 – only if they notice, or if they are informed of the fact, the assigned counsel’s fault acting for a proper representation.

In this present case the starting point is that concerning the assigned counsel’s skill and behaviour, he was proved to be unsuitable for achieving the effect demanded by the 3rd point of section 6. The Court remarked that the first assigned counsel didn’t carry out any actions in the interest of the petitioner before he would have announced his illness. This way the petitioner wasn’t able to provide his own defence.

As far as the second defence is concerned, whose assignment was made known for the petitioner only three days before the criminal court, the Court thought he didn’t have enough time to study the case, to visit the petitioner in the prison, and to get prepared for the defence. The time between the announcement of assigning a new counsel and the trial itself was too short for a serious and complicated case, in which there was no investigation and a serious penalty was to be expected. The Supreme Court didn’t redress the infringement as he refused the appeal because of an unacceptable reason in his judgement.

The Court also stated that it would have been the obligation of the mentioned authorities to act – besides respecting the principal of independence of the Law Society – in a way that the petitioner should get advantages deriving from his rights acknowledged also by the authorities. In other words both the investigative authorities and especially the acting courts should have examined and noticed the lack of proper legal aid and the assigned counsel
‘s unfitness for the task and also it should have been their duty to assign another counsel besides the official adjournment of the trial.

In the case of VAN GEYSEGHEM BELGIUM (21.01.1999.) the Court stated the infringement of the 1st and 3rd/c point of section 6 since the petitioner’s defence lawyer couldn’t practice his rights in the absence of his client before the Court of Appeal.

The Court emphasised in the reasons that every accused has the right for a defence lawyer. This principle can be found in the right for fair procedure. The accused can’t lose this right just because he doesn’t appear on the trials. Even if it’s the obligation of the legislation to hinder unjustified absence, he can’t impose sanctions with the infringement of the right connected to the representation of the defence lawyer. The legal requirement for the presence of the accused on the trials can be ensured with other devices.

In the case of VOISINE FRANCE (year 2000) the Court stated the infringement of the right for knowing the case because the public prosecutor’s suggestion wasn’t expounded with the petitioner in advance.

In the case of ROWE and DAVIS UNITED KINGDOM (year 2000) also the right for fair procedure was infringed since the prosecution referring to public interest – without the acting judge’s knowledge and approval – important evidences weren’t made available for the defence. He didn’t state the infringement of the law in the case of Jasper and Fitt, because the evidences weren’t made available for the defence and the jury, but the acting judge – considering the nature of the given pieces of information – decided in the question of retaining the evidences and they made the most possible accessible evidences without making the secret pieces of information in the interest of the public open.

In the case of KRCMÁR and MÁSOK CZECH REPUBLIC (year 2000) the right for fair procedure was infringed because the petitioners weren’t ensured the possibility , in the trial before the constitutional court, to learn written evidences having arisen and concerning the merits serving as a basis in the case, and so that the petitioners could expound their remarks in the respect of the content, the importance and the authenticity of the evidences.

ad. III. (respecting private life and private secret)

In this group we can find decisions which state the infringement of other sections (e.g. section13: right for complaint), including section 6 most often.

Primarily the infringement of the right for private – and family life was stated in the case of DOMENICHINI ITALY (15.11.1996.), as the correspondence of the person being in prison – including the correspondence with his defence lawyer – was checked by the prison authorities.

At the same time the 3rd/c point of section 6 (owning the devices for preparing the defence) was infringed by opening and reading the letter – written by the petitioner to his defence lawyer – containing the reasons needed for handing in the nullity complaint. The defence lawyer was given the letter only after the legal deadline, - which is ten-day long at the Nullity Chair – this way he handed it in late.

Section 13 in the Agreement (right for effective legal remedy) was also infringed by the fact that there was no possibility for legal remedy against the law enforcer judge’s decision ordering the supervision. They could only ask the change of the order in the discretionary petition from the judge passing his judgement.

In the case of CALOGERO DIANA ITALY- similarly to the above mentioned arguments – the Court founded guilty the Italian government in his judgement (15.11.1996.) since the correspondence between the accused completing his sentence and his defence lawyer was controlled by the authorities.

In the judgement of KOPP SWITZERLAND (25.03.1998.) the Court stated the infringement of section 6 because the phone was tapped in the defence lawyer’s office.

In the case against PETRA ROMANIA (23.09.1998.) the Court stated that the Agreement’s 2nd point of section 8 (right for respecting private and family life) was infringed when the detainee’s correspondence with the Committee of the Human Rights was controlled.

ad. IV. (right for freedom of speech)

In the case against SCHÖPFER SWITZERLAND (20,05,1998,), the judgement set that the section of freedom of speech was infringed when a sanction was imposed against the defence lawyer who expressed his critical cutting opinion concerning the jurisdiction on a press conference.

The Swiss defence lawyer held a press conference in his office where he stated that the laws and human rights are seriously infringed in the field of the prefecture of Hochdorf for years. He stated that one of his clients was taken into custody and kept in prison without any kind of written decision. His statements were published in several newspapers. The Supervisory Committee of the Law Society of Luzern started legal proceedings against the petitioner in December 1992. In 15th March,1993 he was fined for 500 CHF because of infringing the professional rules of behaviour. The Law Society stated that the petitioner failed to inform the Public Prosecutor’s Office and the Court of Appeal about his complaints (which were serious), though these were the Supervisory Organisations o the Prefecture. Consequently he didn’t give proof of discretion which should be expectable from the defence lawyers during the actual cases. What’s more he adopted hidden advertisement and poor sensationalism, so he infringed the prestige of the Judicial authorities of Canton Luzern.

The Court emphasised the defence lawyers’ special status created a central position for them in the jurisdiction, since they are mediators between the citizens and the courts which explains the usual restriction of the behaviour of the Law Society’s members. Regarding the defence lawyers’ key roles on this field, they are to be expected to contribute towards the effective work of the jurisdiction and also to the continuance of the trust given to them.

It is obvious that the freedom of speech concerns the defence lawyers as well, who can naturally make their remarks in public but their judgement cannot exceed a certain level. In connection with this we must regard the insurance  of the right balance between the concerning interests. This includes the citizens’ rights for getting information of the question in connection with the requirements of the proper work of the jurisdiction and of the dignity of the legal profession.

The Court stated that the petitioner made remarks in connection with a criminal procedure which was current at that time before the Court. The Court had regards to the general nature seriousness and tone of the petitioner’s complaints besides the fact that the petitioner held a press conference earlier stating that this was his last chance and he offered his appeal to the  Court of Appeal of Luzern only after this, where he partly succeeded. He didn’t turn either to the other organisation having supervision over district authorities or to the public prosecutor’s.[11]

ad. V. (right for legal remedy)

In the above mentioned case of CALOGERO DIANA ITALY (15.11.1996.), the Court stated in its judgement that the accused had no possibility for legal remedy against the decision of the law enforcer judge ordering control, and the alteration of the order could have been asked only from the judge passing the judgement in the petition of fairness. The right for effective legal remedy (section 13) was infringed by this.

In the case against PETRA ROMANIA (23.09.1998.) – which has already been cited above – the Court also stated that section 25 in the Agreement (right for personal complaint) was infringed, as the petitioner was threatened which hinders the petitioner in his effective legal practice.

The Human Rights’ Committee of UN as a court of human rights:

The ‘International Document of Agreement of Civil and Political Rights’ also appearing as the source of the European Agreement (announced by the 8th law decree in Hungary in1976.) and the Optional Minutes (announced by the 25th law decree in Hungary in 1988.) attached to that along with the Agreement introduced basically the same international human rights judging in the scope of this individuals can appeal to the Human Rights’ Committee of UN, that makes a decision after examining the complaint.

It is remarkable that Hungary was also concerned in one of the decisions in connection partly with the examined topic.[12]

In the case against KOLUMIN HUNGARY the Human Rights’ Committee of UN examined Vladimir Kolumin’s complaint (a person used to be a Soviet, later a Russian citizen during the case), in which he objected to the infringement of his right for personal freedom (section 9 of the Agreement), right for fair treatment with detainees (section 10), right for fair judicial procedure (section 14), and the right for prohibition of disadvantageous distinction (section 26).

Concretely he felt injurious – among others – that after his detention till the end of the investigation and his transportation to the penal institution it was not possible for him to meet either his defence lawyer or the Soviet consul, to write letters to his friends and relatives, and to get his Hungarian grammar book and dictionary from his luggage to learn the language.

The defence of the Government was that Kolumin, during his detention in the police cells, filled and handed in seventeen so called application sheets to the authorities. Among these there is no request for a grammar book and a dictionary (there were no such books in his luggage according to the inventory made by the police).

Furthermore the defence pointed out that they assigned a counsel for Kolumin in 20.08.1988. with whom he asked for an appointment in his requests. These requests were sent to the defence lawyer and both of his written requests were also sent to the Soviet consul in which he urged their meetings.

Kolumin also stated that the procedure against him didn’t meet the requirements of section 14 in the Document of Agreement in more respects. According to his statement he wasn’t given enough time to study the documents of the investigation and to consult his defence lawyer after the end of the investigation; his defence lawyer was unprepared and unfitted for the task.

The Hungarian Government proved in contrast to this that Kolumin could study the 600-paged document of the investigation with the help of his interpreter for six whole days and this can’t be considered short time. Besides he should have asked  - might as well through his defence lawyer – for the extension of the time for studying the documents, but there is  no trace of it as there is no trace of raising these complaints during the procedure either. He met his defence lawyer five times before the trial; there is no trace of his (defence lawyer’s) unfitness, he didn’t expressed this opinion either during the investigation or the trial, this way neither the Public Prosecutor’s Office nor the Court didn’t have the possibility to learn about his complaint, to consider whether it was needed to arrange for assigning an other counsel.

The Human Rights’ Committee as a court passed its judgement in 26.03.1996. in which – basically accepting the arguments of the Government – it stated that Kolumin’s rights according to sections 10 and 14 in the Document of Agreement (the right for preparing for the defence and the right for defence) weren’t infringed.

[1] More details: László Kecskés: EC law and legal harmonisation. KJK. Bp. 1997.; Jenő Czuczai – LajosFiczere (eds.): Europe from A to Z. Handbook of the European Integration. Bp. 1997.; Zoltán Lomnici (ed.): European Institutions and legal harmonisation. HVG-Orac, Bp. 1998.; László Kecskés – Zoltán Lomnici – Mihály Maczonkai: The Court Of the European Community HVG-Orac, Bp. 2001.


[2] The Hungarian effects of case law, my – occassionally de lege ferenda – opinions concerning the modification of the internal law will be detailed in my monograph about ‘The defence lawyer. About the role and legal status of the defence lawyer in the criminal procedure.’ (Publisher Dialóg Campus, Budapest-Pécs, 2002. p. 493.) In my present study – without intending to be exhaustive – I am demonstrating only the main decisions and consequences drawn from those.


[3] The cases appeared not only in original sources but in the supplements of Judicial Decisions such as in the followings: The Legal Practice of the European Court of Human Rights by Vincent Berger (HVG-Orac, Bp. 1999.), Handbook about the judgement of Human Rights of Strasbourg (HVG-Orac, Bp. 1998.).

[4] The Parliamentary Commissioner’s Report of the Civil Rights also refers to this about the investigation nr 6564/1996: the prevail of the right for defence of the detainees, having an assigned counsel, in the investigative period of the criminal procedure, 1996. Csongor Herke: Theoretical and practical questions of detention. Ph. D thesis. Manuscript, Pécs, 2001. p.418


[5] In my opinion introducing the concept and institution of the defence lawyer, belongs to the circle of efficiency. As only a professional and qualified person, who is specialised in this task, can be effective and successful, opposed to a prosecutor who is an expert in law. The only and most suitable circle for this task is the lawyer’s. The law (XIX/1998), current from 2003, which is about the new criminal procedure, rightly lets only the defence lawyer into a defensive position. The phrase ‘defence lawyer’ is proper doubly. Partly it refers to the fact that the person is a professional lawyer, partly it differentiate the lawyer being in a defensive position from other lawyers in the criminal procedure. Since the lawyer can be the offended one, his other legal representative concerned, the one who is making the documents in the reconsolidation, then the lawyer of the witness in the new criminal procedural law (as a 1quasi solicitor’)

[6] Miklós Kengyel also indicates well in the native literature examining the organisational principals of procedural law that their majority have already been drafted in the international norms, which are already human rights-like while the principals of operation are natural right-like. Miklós Kengyel: Hungarian Civil Procedure I-II-III. Pécs, 1991-92-93. Volume I. p. 19

[7] The ‘legal gladiators’, the opponents can carry out the litigation in their own method and wish according to the judicial rules and practice before the passive, non-committal and inactive Court who has to keep off ‘getting into an arena’. Miklós Kengyel: The civil procedure at the turn of the millennium. Hungarian Law 2000/12. p.713

[8] I initiated that the change of the Hungarian regulations to be paid for at the Constitutional Court of the Hungarian Republic in 1998. Decision hasn’t been made yet. See my viewpoint more detailed about this: Csaba Fenyvesi: Does the constitutional principal of the defence suffer damage by authorising copying documents? Belügyi Szemle, 3/1999. p. 45-52


[9] The disadvantaged accused can’t be hindered by unfairness, and making him much disadvantaged by this. Flórián Tremmel shows the accused one’s situation using a proper remark: Magyar Büntetőeljárás. Dialóg-Campus, Pécs,2001. p. 154

[10] Not even despite the fact that one of the French lawyers’ delegation, visiting Hungary in 2000, was shocked and astonished realising the lack of prosecutor’s presence on the Hungarian judicial procedure which is unacceptable for them on both the theoretical and practical stages in the jurisdiction of their country.

[11] The reason for detailing the judgement was  that it could be a guiding for he Hungarian legal practice and regulation too, which is still considered to be rather deficient and unsettled.

The limit of the defence lawyer’s opinion appears in the scope of the defence lawyer’s regulations. It’s a well-perceptible demand for the Court that no statement is permitted in the current criminal procedure. Rejecting this, or the false fact-statements against the jurisdiction, must involve disciplinary sanctions (based on high-level ethical requirements) in certain national Law Societi(es).


[12]See the detailed description of this case: Tamás Bán: Kolumin contra Hungary: the decision of the Human Rights’ Committee of UN. Birósági Határozatok 12/1997. p. 953-956

2002/2. Contents