Chapter vi Equality of Arms and Rights to a Fair Hearing
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(13.9) …
the right to a fair ... hearing…, including the right to present legal arguments and to be represented by legal counsel of one’s choice.
Concluding Document of the Vienna Meeting, Vienna 1989.
The right to defend oneself stands at the core of the notion of due process and includes the
following: the right to self-representation (See also 6.6.1); the right to be represented by
counsel of one’s choice (See also 6.6.3, 6.6.4 and 6.6.5) and to be informed of this right (See
also 6.6.2); the right to seek and give instructions from and to counsel in confidence (See
also 6.6.6); and the right to receive free legal assistance (See also 6.6.7). Though the right to
“defend” oneself has connotations typically associated with criminal proceedings, it is also
intimately linked to the right to be heard (See also 6.5), especially to the principle of audi
alteram partem (See also 6.5.1) (“hear the other side”), which is applicable to both criminal
and non-criminal proceedings alike. In the context of criminal proceedings, OSCE participating States have committed themselves to ensuring that any prosecuted person will have
the right to defend her/himself in person or through prompt legal assistance of her/his own
choosing or, if s/he does not have sufficient means to pay for legal assistance, to be given it
free when the interests of justice so require.603
6.6.1 The right to self-representation
Every person is entitled to represent her/himself in judicial proceedings, which means that,
in principle, a person cannot be forced to accept State-appointed counsel.604 In the context
of criminal proceedings, however, this right is not absolute, which means that any restriction on the ability of a person to defend her/himself must have an objective and sufficiently
serious purpose, and not go beyond what is necessary to uphold the interests of justice,
including the interests of ensuring that a defendant is able to properly defend her/himself
on serious charges. States should avoid adopting an absolute ban against the right to defend
oneself in criminal proceedings without the assistance of legal counsel, so that every situation is assessed on its merits. As explained by the Human Rights Committee, “the interests
of justice may, in the case of a specific trial, require the assignment of a lawyer against the
wishes of the accused”, giving the following particular examples:
• persons substantially and persistently obstructing the proper conduct of trial;
• persons facing a grave charge but being unable to act in their own interests; or
603 Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE,
Copenhagen 1990, para 5.17.
604 Domukovsky and Others v Georgia, HRC Communications 623/1995, 624/1995, 626/1995, 627/1995,
UN Docs CCPR/C/62/D/623/1995 (1998), CCPR/C/62/D/624/1995 (1998), CCPR/C/62/D/626/1995 (1998),
and CCPR/C/62/D/627/1995 (1998), para 18.9.
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