Chapter 7 • The Right to a Fair Trial: Part II – From Trial to Final Judgement The Pakelli case In the case of Pakelli, article 6(3)(c) was violated since the applicant was refused legal aid in order to be represented in the Federal Court which was going to hold an oral hearing in his case, a course it took only in exceptional cases. In the view of the European Court the personal presence of the applicant could not compensate for the lack of a legal practitioner to examine the legal issues arising, which inter alia concerned the application of a new version of the Code of Criminal Procedure. Consequently, the applicant was deprived of “the opportunity of influencing the outcome of the case”.129 It is noteworthy that, in the view of the European Court, “the existence of a violation is conceivable even in the absence of prejudice”, and that to require proof that the lack of effective assistance prejudiced the applicant in interpreting article 6(3)(c) “would deprive it in large measure of its substance”.130 Lastly, it is important to note that the available legal assistance must be “effective”, and that consequently it is not sufficient for the purposes of complying with article 6(3)(c) that a legal counsel has been merely nominated.131 3.5.3 The right to privileged communications with one’s lawyer The right to privileged communications with one’s lawyer was dealt with in section 6.4 of Chapter 6 concerning “The right to legal assistance”. This right is of course also applicable at the stage of trial and appeal proceedings, during which the accused must be ensured adequate time and facilities for consulting with his or her lawyer confidentially. Everyone has the right to defend himself or herself in person or to appoint a lawyer of his or her own choice in order to ensure an efficient defence. The right to legal assistance must be effectively available, in particular in capital punishment cases. The domestic courts have a duty to ensure that the accused enjoys an effective defence. Incommunicado detention violates the right to effective access to one’s lawyer. 129 Eur. Court HR, Case of Pakelli v. Federal Republic of Germany, judgment of 25 April 1983, Series A, No. 64, p. 18, para. 39. 130 Eur. Court HR, Case of Artico v. Italy, judgment of 13 May 1980, Series A, No. 37, para. 35 at p. 18. 131 Ibid., para. 33 at p. 16. Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers 279