DAUD v. PORTUGAL (11/1997/795/997) 21 April 1998: Quality of legal assistance and interpreting

Portugal – conduct of criminal proceedings against an alien, in particular effectiveness of officially assigned legal assistance and quality of interpreting

I. ARTICLE 6 1 AND 3 (c) AND (e) OF THE CONVENTION

A. Legal assistance
Intended outcome of Article 6 3 (c) had not been achieved in the instant case as accused had not had benefit of practical and effective defence.
Necessary to ascertain whether it had been for relevant authorities, while respecting the fundamental principle of the independence of the Bar, to act so as to ensure that the applicant received the effective benefit of his right, which they had acknowledged – the manifest shortcoming on the part of an officially assigned lawyer and the refusal of applications made by applicant himself had required that the Lisbon Criminal Court should not have remained passive.

Conclusion: violation (unanimously).

ALLEGED VIOLATION OF ARTICLE 6 1 AND 3 (c) AND (e) OF THE CONVENTION
32. Mr Daud complained that he had been denied a fair trial on account of inadequate legal assistance, the shortcomings of his officially assigned lawyers and the refusal of his application for a judicial investigation and of his application to submit evidence. He also criticised the quality of the interpreting during the proceedings. In support of his complaints he relied on paragraphs 1 and 3 (c) and (e) of Article 6 of the Convention, which provide:

"1. In the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…

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;

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court."

33. As the requirements of paragraph 3 of Article 6 are to be seen as particular aspects of the right to a fair trial guaranteed by paragraph 1, the Court will examine the applicant’s complaints successively under sub-paragraphs (c) and (e) of paragraph 3 without isolating that paragraph from the common core to which it belongs (see, among many other authorities, the Artico v. Italy judgment of 13 May 1980, Series A no. 37, p. 15, 32, and the F.C.B. v. Italy judgment of 28 August 1991, Series A no. 208-B, p. 20, 29).

A. Legal assistance

34. In the applicant’s submission, the lawyers assigned to him by the Portuguese authorities by way of legal assistance, particularly the first one, did not provide him with effective legal assistance in preparing and conducting his defence, so that he was obliged to apply in person, but unsuccessfully, to the investigating judge and subsequently to the Criminal Court. The refusal to initiate judicial investigation proceedings had seriously infringed his rights. Seeing that he was a foreigner, he should have been given appropriate assistance.

35. The Commission agreed in substance.

36. The Government, on the other hand, maintained that the obligation to provide legal assistance had been discharged by appointing and replacing the officially assigned lawyers and paying their fees. A replacement had been appointed as soon as the circumstances had required. The applicant had never informed the judge of any shortcomings on the part of his representative or asked for a different one. The second lawyer, appointed on 18 January 1993, had not sought any extra time to study the file.  The authorities could not go beyond appointing counsel and replacing him if the defence was manifestly inadequate. They could never aim to rectify any technical or procedural errors. Lastly, the domestic courts’ refusal of the applicant’s requests and, more particularly, the lack of any judicial investigation had in no way impaired the fairness of the trial, as the defendant had been able to adduce the same evidence at the trial as he would have been able to do during a judicial investigation.

37. The Court will consider together, as the Commission did, the general complaint concerning the lack of adequate legal assistance and the more particular complaint that Mr Daud’s applications were refused by the investigating judge and the court (see paragraphs 14 and 18 above).

38. The Court reiterates that the Convention is designed to "guarantee not rights that are theoretical or illusory but rights that are practical and effective, and that assigning counsel does not in itself ensure the effectiveness of the assistance he may afford an accused" (see the Imbrioscia v. Switzerland judgment of 24 November 1993, Series A no. 275, p. 13, 38). "Nevertheless, a State cannot be held responsible for every shortcoming on the part of a lawyer appointed for legal aid purposes... It follows from the independence of the legal profession from the State that the conduct of the defence is essentially a matter between the defendant and his counsel, whether counsel be appointed under a legal aid scheme or be privately financed ... the competent national authorities are required under Article 6 3 (c) to intervene only if a failure by legal aid counsel to provide effective representation is manifest or sufficiently brought to their attention in some other way" (Kamasinski v. Austria judgment of 19 December 1989, Series A no. 168, p. 33, 65).

39. In the instant case the starting-point must be that, regard being had to the preparation and conduct of the case by the officially assigned lawyers, the intended outcome of Article 6 3 was not achieved. The Court notes that the first officially assigned lawyer, before reporting sick, had not taken any steps as counsel for Mr Daud, who tried unsuccessfully to conduct his own defence. As to the second lawyer, whose appointment the applicant learned of only three days before the beginning of the trial at the Criminal Court, the Court considers that she did not have the time she needed to study the file, visit her client in prison if necessary and prepare his defence. The time between notification of the replacement of the lawyer (23 January 1993 – see paragraph 19 above) and the hearing (26 January 1993 – see paragraph 20 above) was too short for a serious, complex case in which there had been no judicial investigation and which led to a heavy sentence. The Supreme Court did not remedy the situation, since in its judgment of 30 June 1993 it declared the appeal inadmissible on account of an inadequate presentation of the grounds (see paragraph 23 above).
Mr Daud consequently did not have the benefit of a practical and effective defence as required by Article 6 3 (c) (see the Goddi v. Italy judgment of 9 April 1984, Series A no. 76, p. 11, 27).

40. The Court must therefore ascertain whether it was for the relevant authorities, while respecting the fundamental principle of the independence of the Bar, to act so as to ensure that the applicant received the effective benefit of his right, which they had acknowledged.

41. The Court notes, firstly, that the application for a judicial investigation made by the applicant on 15 October 1992 was refused by the investigating judge on the principal ground that it was written in Spanish (see paragraphs 9-10 and 14 above). The application of 15 December, in which the applicant asked the court to carry out certain investigative measures, was refused by the judge in charge of the case for the same reason (see paragraphs 17 and 18 above). Those refusals themselves did not affect the fairness of the trial, since the various investigative measures sought by the applicant were carried out during the trial.

42. In his letter of 15 December 1992, after more than eight months had elapsed, the applicant also asked the court for an interview with his lawyer, who had still not contacted him (see paragraph 17 above). Because the letter was written in a foreign language, the judge disregarded the request. Yet the request should have alerted the relevant authorities to a manifest shortcoming on the part of the first officially assigned lawyer, especially as the latter had not taken any step since being appointed in March 1992. For that reason, and having regard to the refusal of the two applications made during the same period by the defendant himself, the court should have inquired into the manner in which the lawyer was fulfilling his duty and possibly replaced him sooner, without waiting for him to state that he was unable to act for Mr Daud. Furthermore, after appointing a replacement, the Lisbon Criminal Court, which must have known that the applicant had not had any proper legal assistance until then, could have adjourned the trial on its own initiative. The fact that the second officially assigned lawyer did not make such an application is of no consequence. The circumstances of the case required that the court should not remain passive.

43. Taken as a whole, these considerations lead the Court to find a failure to comply with the requirements of paragraph 1 in conjunction with paragraph 3 (c) of Article 6 from the stage of the preliminary inquiries until the beginning of the hearings before the Lisbon Criminal Court. There has therefore been a violation of those provisions.

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