Page 37 - Report on the infringement of rights and guarantees of attorneys in Ukraine

It should be emphasized that the actual participation of any attorney in a court
hearing does not mean the automatic exercise of the right of defence.
According to ECHR practice, for example, in the Artico v. Italy case, the
Convention is intended not to guarantee rights that are theoretical or illusory,
but rights that are practical and effective; this is particularly so of the rights of
the defence. The Court explains that Article 5 § 1 (c) of the Convention speaks
of "assistance" and not of "nomination" (of a defender). Again, mere
nomination does not ensure effective assistance. At the same time, state
authorities must facilitate, and not impede, the exercise of the rights of an
accused (Balliu v. Albania case). Moreover, the ability of a person accused of
communicating with his defence counsel is fundamental for the preparation of
the line of defence (Can v. Austria case). Thus, the presence of a defence
counsel who has no connection with his/her client and has not agreed his/her
legal position with a client does not meet the requirements of a fair trial.
The imposition of a defence counsel from the public defenders, unless it is due
to the fact that the accused has insufficient funds to pay for legal aid , is a
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violation of Article 6 §§ 1 and 3 (c) of the Convention. In the Hanzevacki v.
Croatia case, the ECHR explains that a person charged with a criminal offence
who does not wish to defend himself/herself in person must be able to have
recourse to legal assistance of his own choosing.

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