be able to make a personal submission of his version
of the facts, and that a defence counsel should not be
imposed on him, leaving him free to choose who
will defend him.
of a third lawyer to an appellant who did not wish to
assume his own defence was not in breach of the
European Convention.
5.2 With regard to admissibility, the author
explains that the claim which he has lodged with the
Committee differs from the case heard by the
European Court. First of all, the Court only
considered the events relating to the judgement of
the Court of first instance of 15 December 1998.
Since then, he appealed against the judgement and is
still awaiting a decision. Moreover, the point of law
raised relates to article 14 of the Covenant, not
article 6 of the European Convention on Human
Rights; the tenor of those provisions is different.
According to the author, in addition to the breach of
the basic guarantee set out in article 14, paragraph 3
(d) and (e), there has also been a violation of
paragraphs 1 and 5 of that article, namely, the right
to a fair trial in connection with the judgement, on
appeal, regarding the civil obligations resulting from
an unlawful criminal conviction.
4.5 The State party points out that the right to
defend oneself is a right enshrined in Portugal’s
penal procedure. Articles 138 and 140 of the Code of
Penal Procedure allow the accused to be given a
hearing and to express directly and personally his
position with regard to the facts, and article 332 of
the same Code requires the accused to be present in
court.
4.6 In the State party’s view, a distinction should
be drawn between personal defence, which allows
the accused to be given a hearing and to submit his
position with regard to the facts directly, and
technical defence, to be conducted by a lawyer, for
certain stages of the proceedings such as hearings or
appeals. The right to defend oneself is not absolute:
in certain circumstances States may require legal
representation by a lawyer. 3 Though article 14,
paragraph 3 (d), of the Covenant recognizes the right
of the accused to defend himself in person or with
legal assistance, it does not specify under what
conditions and leaves to States parties the choice of
the appropriate means to enable their judicial
systems to guarantee the defence.
5.3 Lastly, article 5, paragraph 2 (a), of the
Optional Protocol to the Covenant rules out
consideration by the Committee of any
communication if the same matter is “being
examined” under another procedure of international
investigation or settlement, not if the matter has
already been examined.
4.7 The State party maintains that the requirement
for a lawyer to act at certain stages of the
proceedings is a sufficient and proportionate means
for States to employ in order to provide greater
guarantees and more strictly defend the accused,
given the type and specific nature of the issues raised
in criminal proceedings.
5.4 The author points out that the rule requiring a
claim to be lodged within six months of the final
decision does not apply to the Committee. As to his
status as victim, the amnesty granted by the Court of
Ponte de Lima on 3 December 1999 did not expunge
his sentence to pay damages to the judge in question
and that he can therefore still claim to be a victim.
Author’s comments on the State party’s submissions
5.5 So far as the exhaustion of domestic remedies
is concerned, the author concedes that he has not
exhausted domestic remedies given the application
he filed on 18 January 2001. He maintains, however,
although without laying a complaint for a violation
of article 14, paragraph 3 (c), of the Covenant, that
he has been waiting for more than four years for a
decision from the Appeals Court, and this does not
constitute an appeals procedure functioning within a
reasonable lapse of time. He also explains that he
raised before the Constitutional Court the question of
his right to defend himself personally, and that the
Constitutional Court’s decision did not take account
of the fact that the temporary removal of his name
from the Bar Council’s roll was wrongful.
5.1 In his comments of 4 August 2003, the author
contests the arguments of the State party. First of all,
he considers that Portugal’s Code of Penal Procedure
departs from article 14 of the Covenant in stipulating
that in certain cases, including attendance at hearings
and the lodging of appeals, the presence of a defence
lawyer is obligatory, and if the accused fails to
appoint a lawyer, the court must assign him one. The
author also refers to the case law of the Portuguese
Supreme Court (Supremo Tribunal de Justiça) under
which the accused cannot act in person in criminal
proceedings, even if he is a lawyer or a judge.
Finally, the author considers that the reference by the
State party to the ruling of the European Court of
Human Rights in relation to the case of Croissant v.
Germany, 25 September 1992, is not relevant, as on
that occasion the Court decided that the assignment
5.6 On the merits, the author points out that a
breach of article 14, paragraph 3 (d), is manifest in
Portuguese legislation, whereas other States’ laws 4
allow an accused to defend himself in person. At the
judicial level there is also a breach of article 14,
3
The State party refers to Ireneu Cabral Barreto in its
comments to the European Court of Human Rights (2nd
ed., pp. 168-169) and to the case of Croissant v. Germany,
25 September 1992 (Series A, No. 237-B).
4
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