Chapter 7 • The Right to a Fair Trial: Part II – From Trial to Final Judgement 3.5 The right to defend oneself in person or through a lawyer of one’s own choice Article 14(3)(d) of the International Covenant, article 7(1)(c) of the African Charter on Human and Peoples’ Rights, article 8(2)(d) of the American Convention on Human Rights and article 6(3)(c) of the European Convention on Human Rights all guarantee the right of anyone charged with a criminal offence to defend himself in person or through legal assistance of his own choice. So do articles 20(4)(d) and 21(4)(d) of the respective Statutes of the International Criminal Tribunals for Rwanda and the former Yugoslavia. ***** In its General Comment No. 13 on article 14, the Human Rights Committee emphasized that “the accused or his lawyer must have the right to act diligently and fearlessly in pursuing all available defences and the right to challenge the conduct of the case if they believe it to be unfair. When exceptionally for justified reasons trials in absentia are held, strict observance of the rights of the defence is all the more necessary”.85 The right of access to legal assistance must be effectively available, and, where this has not been the case, the Human Rights Committee has concluded that article 14(3) has been violated.86 This was the case where a person did not have access to legal assistance during the first ten months of his detention and, in addition, was not tried in his presence.87 Where the domestic law has not authorized the author to defend himself in person, the Committee has also found a violation of article 14(3)(d), which allows the accused to choose whether he or she wishes to defend him or herself – be it through an interpreter – or to have the defence conducted by a lawyer.88 The right to have a lawyer of one’s own choice was violated in the case of López Burgos where the victim was obliged to accept the ex officio appointment of a colonel as his legal counsel.89 On the other hand, the right to choose under article 14(3)(d) “does not entitle the accused to choose counsel provided free of charge”, but, in spite of this restriction, “measures must be taken to ensure that counsel, once assigned, provides effective representation in the interest of justice”, this including “consulting with, and informing, the accused if he intends to withdraw an appeal or to argue, before the appellate instance, that the appeal has no merit”.90 Although counsel 85 United Nations Compilation of General Comments, p. 125, para. 11. 86 See among many cases, Communication No. R.2/8, B. Weismann Lanza and A. Lanza Perdomo v. Uruguay (Views adopted on 3 April 1980), in UN doc. GAOR, A/35/40, p. 118, para. 16; and Communication No. R.1/6, M. A. Millán Sequeira v. Uruguay, (Views adopted on 29 July 1980), ibid., p. 131, para. 16. 87 Communication No. R.7/28, I. Weinberger v. Uruguay (Views adopted on 29 October 1980), in UN doc. GAOR, A/36/40, p. 119, para. 16. 88 Communication No. 526/1993, M. and B. Hill v. Spain (Views adopted on 2 April 1997), in UN doc. GAOR, A/52/40 (vol. II), p. 18, para. 14.2. 89 Communication No. R.12/52, S. R. López Burgos v. Uruguay (Views adopted on 29 July 1981), in UN doc. GAOR, A/36/40, p. 183, para. 13. 90 Communication No. 356/1989, T. Collins v. Jamaica (Views adopted on 25 March 1993), in UN doc. GAOR, A/48/40 (vol. II), p. 89, para. 8.2. Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers 271