Right to counsel
In criminal law, the right to counsel means a defendant has a legal right to have the assistance of counsel (i.e., lawyers) and, if the defendant cannot afford a lawyer, requires that the government appoint one or pay the defendant's legal expenses. The right to counsel is generally regarded as a constituent of the right to a fair trial. Historically, however, not all countries have always recognized the right to counsel. The right is often included in national constitutions. Of the 194 constitutions currently in force, 153 have language to this effect.[1]
Around the world[edit]
Australia[edit]
In Australia, suspects and defendants have the right to have legal representation during investigation and trial. Australian law does not recognize a right to publicly-funded legal defense, but does recognize that in the absence of counsel the accused may not receive a fair trial as mandated by law. Only the states of Victoria and New South Wales have dedicated public defender systems. Courts have the power to stay proceedings when they determine there is a risk of unfair trial. The High Court of Australia ruled in Dietrich v The Queen that while indigent defendants are not entitled to legal defense as a guaranteed right, a judge should typically grant a request for an adjournment or stay in most serious criminal cases where a defendant is unrepresented, and should allow a trial where a defendant accused of a serious criminal offense is left unrepresented to proceed only in exceptional circumstances.[2] Each state and territory of Australia has a Legal Aid Commission to provide legal services in criminal, civil, and family law matters to the indigent, but will only assist those who meet their threshold criteria, particularly with regard to income. Anyone accused of a Commonwealth crime, or crime falling within the jurisdiction of the federal government, has the right to ask a judge for counsel within two weeks of committal, and the judge may appoint a lawyer if convinced that the defendant cannot afford counsel. A network of community legal centres also exists to provide legal services free of charge to poor people who do not qualify for Legal Aid. Although they receive federal and state funding, they are independent non-profit organizations which rely on lawyers to staff them on a volunteer basis. Most cannot adequately keep up with demand and must turn some people away. Those who cannot obtain any kind of legal assistance may go unrepresented if they cannot pay for a lawyer.[3][4][5]
Brazil[edit]
The Constitution of Brazil declares that all defendants have right to counsel, and mandates that all defendants who cannot pay for an attorney are entitled to state-funded legal representation in all criminal and civil cases.[6] Public defender's offices exist at both state and federal levels as mandated by the constitution. A person must formally declare that they cannot afford regular legal aid to benefit from public defenders' services.
Canada[edit]
In Canada, the right to counsel is guaranteed under Section Ten of the Canadian Charter of Rights and Freedoms upon "arrest and detention", as well as the right to habeas corpus. In October 2010, the Supreme Court of Canada ruled in the case R v Sinclair that the right to counsel during interrogation is not absolute in Canada.[7] It said that importing US-style Miranda rights was not in the interests of Canada. The ruling was a bare majority ruling, with a strenuously voiced minority opinion stating that it would lead to more false confessions and wrongful convictions.[8]
China[edit]
According to Article 125 of the Constitution of the People's Republic of China and Article 11 of the Criminal Procedure Law of 1996, Chinese citizens have the right to legal counsel in court. The accused's right to counsel in China only comes into being once a case goes to trial. It does not exist at the investigative stage. A suspect under investigation only has the right to retain a lawyer to assist in securing bail, making procedural complaints, and seeking details from the police on the nature of the crime alleged, and not to start building a defense. A suspect gains the right to retain a lawyer upon having been interrogated or subjected to movement restrictions by the authorities. In cases defined as involving state secrets, the right to counsel is more heavily restricted: a lawyer may only be appointed to assist the suspect with the investigating body's permission.[9] Chinese law allows courts to appoint a lawyer for a defendant unable to hire one, and it is mandatory for courts to appoint a lawyer to the blind, deaf, and mute, minors, and anyone facing the death penalty. The Chinese government operates thousands of legal aid centers nationwide for indigent defendants. The provincial governments rather than the central government are responsible for setting the threshold at which an economically disadvantaged person meets the criteria for legal assistance.[10][11]
Ethiopia[edit]
The right to counsel is considered a constitutional right in Ethiopia. As per Article 20(5) of the Constitution of Ethiopia, "Accused persons have the right to be represented by legal counsel of their choice, and, if they do not have sufficient means to pay for it and miscarriage of justice would result, to be provided with legal representation at state expense."[12] Ethiopia has public defender systems at both the federal and regional levels, however problems exist with public defense services being inadequate in some areas. A public defender can be assigned on request of the defendant or if the court so chooses. In addition to the public defender system, the Ethiopian judicial system also provides for private attorneys to offer pro bono representation to indigent defendants. Article 49 of the Federal Court Advocates’ Code of Conduct mandates that private attorneys must offer a minimum of 50 hours of legal representation for free or with minimum payment.[13]
France[edit]
The Napoleonic Code of Criminal Instruction, adopted in France in 1808 and inspiring many similar codes in civil law countries, made it compulsory that the defendant should have a lawyer when tried in the assize courts (which judged severe crimes).[14] All criminal defendants in France enjoy right to counsel, and there is also a right to counsel in civil and administrative cases. State-funded legal aid for those facing criminal, civil, and administrative cases is available to those legally resident in France, and in some cases can be used for cases in another jurisdiction in Europe. Eligibility is means-tested, with a sliding scale of support based on income. Those at or below the lowest threshold are entitled to full legal assistance with all costs paid by the state, while higher-income individuals are entitled to have only 55% or 25% of their legal costs covered, depending on their income. State-funded legal advice is provided through a network of public legal advice centers throughout France. Some centers offer free legal advice to anyone living in the department while others restrict their services to those with modest incomes.[15][16]