Practice Relating to Rule 100. Fair Trial Guarantees

Note: For practice concerning the principle of equality of arms, see also see Section A.
IMT Charter (Nuremberg)
Article 16(d) of the 1945 IMT Charter (Nuremberg) provides: “A Defendant shall have the right to conduct his own defense before the Tribunal or to have the assistance of counsel.” 
Charter of the International Military Tribunal for Germany, concluded by the Government of the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland, and the Government of the Union of Soviet Socialist Republics, acting in the interests of all the United Nations and by their representatives duly authorized thereto, annexed to the London Agreement, London, 8 August 1945, Article 16(d).
Geneva Convention I
Article 49, fourth paragraph, of the 1949 Geneva Convention I provides:
In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949. 
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949, Article 49, fourth para.
Geneva Convention II
Article 50, fourth paragraph, of the 1949 Geneva Convention II provides:
In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949. 
Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva, 12 August 1949, Article 50, fourth para.
Geneva Convention III
Article 84, second paragraph, of the 1949 Geneva Convention III provides:
In no circumstances whatever shall a prisoner of war be tried by a court of any kind … the procedure of which does not afford the accused the rights and means of defence provided for in Article 105. 
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 84, second para.
Geneva Convention III
Article 96, fourth paragraph, of the 1949 Geneva Convention III provides: “The accused shall be … given an opportunity of explaining his conduct and of defending himself.” 
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 96, fourth para.
Geneva Convention III
Article 99, third paragraph, of the 1949 Geneva Convention III provides: “No prisoner of war may be convicted without having had an opportunity to present his defence and the assistance of a qualified advocate or counsel.” 
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 99, third para.
Geneva Convention III
Article 105 of the 1949 Geneva Convention III provides:
The prisoner of war shall be entitled to assistance by one of his prisoner comrades, to defence by a qualified advocate or counsel of his own choice …
Failing a choice by the prisoner of war, the Protecting Power shall find him an advocate or counsel … Failing a choice of an advocate or counsel by the prisoner of war or the Protecting Power, the Detaining Power shall appoint a competent advocate or counsel to conduct the defence.
The advocate or counsel conducting the defence on behalf of the prisoner of war shall have at his disposal a period of two weeks at least before the opening of the trial, as well as the necessary facilities to prepare the defence of the accused. He may, in particular, freely visit the accused and interview him in private. He may also confer with any witnesses for the defence, including prisoners of war. He shall have the benefit of these facilities until the term of appeal or petition has expired. 
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 105.
Geneva Convention IV
Article 72, first paragraph, of the 1949 Geneva Convention IV provides:
Accused persons shall have the right to present evidence necessary for their defence … They shall have the right to be assisted by a qualified advocate or counsel of their own choice, who shall be able to visit them freely and shall enjoy the necessary facilities for preparing the defence. 
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 72, first para.
Geneva Convention IV
Article 123, first paragraph, of the 1949 Geneva Convention IV provides: “The accused internee shall be … given an opportunity of explaining his conduct and of defending himself.” 
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 123, first para.
European Convention on Human Rights
Article 6(3) of the 1950 European Convention on Human Rights provides:
Everyone charged with a criminal offence has the following minimum rights:
(b) to have adequate time and the facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require. 
European Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950, as amended by Protocol No. 11, Strasbourg, 11 May 1994, Article 6(3)(b)–(c).
International Covenant on Civil and Political Rights
Article 14(3) of the 1966 International Covenant on Civil and Political Rights provides:
In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
(d) … to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it. 
International Covenant on Civil and Political Rights, adopted by the UN General Assembly, Res. 2200 A (XXI), 16 December 1966, Article 14(3)(b) and (d).
American Convention on Human Rights
Article 8(2) of the 1969 American Convention on Human Rights provides:
[E]very person is entitled, with full equality, to the following minimum guarantees:
(c) adequate time and means for the preparation of his defense;
(d) … to defend himself personally or to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel;
(e) the inalienable right to be assisted by counsel provided by the state, paid or not as the domestic law provides, if the accused does not defend himself personally or engage his own counsel within the time period established by law. 
American Convention on Human Rights, adopted by the OAS Inter-American Specialized Conference on Human Rights, San José, 22 November 1969, also known as Pact of San José, Article 8(2)(c)–(e).
Additional Protocol I
Article 75(4)(a) of the 1977 Additional Protocol I provides: “The procedure … shall afford the accused before and during his trial all necessary rights and means of defence.” 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 75(4)(a). Article 75 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.43, 27 May 1977, p. 250.
Additional Protocol II
Article 6(2)(a) of the 1977 Additional Protocol II provides: “The procedure shall … afford the accused before and during his trial all necessary rights and means of defence.” 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Geneva, 8 June 1977, Article 6(2)(a). Article 6 was adopted by consensus. CDDH, Official Records, Vol. VII, CDDH/SR.50, 3 June 1977, p. 97.
African Charter on Human and Peoples’ Rights
Article 7(1)(c) of the 1981 African Charter on Human and Peoples’ Rights provides that every individual accused shall have “the right to defence, including the right to be defended by counsel of his choice”. 
African Charter on Human and Peoples’ Rights, adopted by the Eighteenth Ordinary Session of the OAU Assembly of Heads of State and Government, Nairobi, 27 June 1981, OAU Doc. CAB/LEG/67/3 rev.5, Article 7(1)(c).
Convention on the Rights of the Child
Article 40(2)(b)(ii) of the 1989 Convention on the Rights of the Child provides: “Every child alleged as or accused of having infringed the penal law has at least the following guarantees: … (ii) to have legal or other appropriate assistance in the preparation and presentation of his or her defence”. 
Convention on the Rights of the Child, adopted by the UN General Assembly, Res. 44/25, 20 November 1989, Article 40(2)(b)(ii).
ICC Statute
Article 55(2) of the 1998 ICC Statute provides that the accused shall have the right to have “legal assistance of the person’s choosing”. 
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 55(2).
ICC Statute
Article 67(1) of the 1998 ICC Statute provides:
In the determination of any charge, the accused shall be entitled to … the following minimum guarantees, in full equality:
(b) To have adequate time and facilities for the preparation of the defence and to communicate freely with the counsel of the accused’s choosing in confidence;
(d) … to conduct the defence in person or through legal assistance of the accused’s choosing, to be informed, if the accused does not have legal assistance, of this right and to have legal assistance assigned by the Court in any case where the interests of justice so require, and without payment if the accused lacks sufficient means to pay for it. 
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 67(1)(b) and (d).
Statute of the Special Court for Sierra Leone
Article 17(4) of the 2002 Statute of the Special Court for Sierra Leone provides:
In the determination of any charge against the accused pursuant to the present Statute, he or she shall be entitled to the following minimum guarantees, in full equality:
(b) To have adequate time and facilities for the preparation of his or her defence and to communicate with counsel of his or her own choosing;
(d) … to defend himself or herself in person or through legal assistance of his or her own choosing … to be informed, if he or she does not have legal assistance, of this right; and to have legal assistance assigned to him or her, in any case where the interests of justice so require, and without payment by him or her in any such case if he or she does not have sufficient means to pay for it. 
Statute of the Special Court for Sierra Leone, annexed to the 2002 Agreement on the Special Court for Sierra Leone, Freetown, 16 January 2002, annexed to Letter dated 6 March 2002 from the UN Secretary-General to the President of the UN Security Council, UN Doc. S/2002/246, 8 March 2002, p. 29, Article 17(4).
UN-Cambodia Agreement Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea
The 2003 UN-Cambodia Agreement Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea provides:
Article 12
Procedure
2. The Extraordinary Chambers shall exercise their jurisdiction in accordance with international standards of justice, fairness and due process of law, as set out in Articles 14 and 15 of the 1966 International Covenant on Civil and Political Rights, to which Cambodia is a party …
Article 13
Rights of the accused
1. The rights of the accused enshrined in Articles 14 and 15 of the 1966 International Covenant on Civil and Political Rights shall be respected throughout the trial process. Such rights shall, in particular, include the right: … to engage a counsel of his or her choice; to have adequate time and facilities for the preparation of his or her defence; to have counsel provided if he or she does not have sufficient means to pay for it; and to examine or have examined the witnesses against him or her.
2. The United Nations and the Royal Government of Cambodia agree that the provisions on the right to defence counsel in the Law on the Establishment of Extraordinary Chambers mean that the accused has the right to engage counsel of his or her own choosing as guaranteed by the International Covenant on Civil and Political Rights. 
Agreement between the UN and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, Phnom Penh, 6 June 2003, Articles 12(2) and 13.
In accordance with Article 2 of the Agreement, Cambodia’s Law on the Establishment of the ECCC (2001), as amended, further implements these provisions. 
Agreement between the UN and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, Phnom Penh, 6 June 2003, Article 2.
Statute of the Special Tribunal for Lebanon
Articles 15 and 16 of the 2007 Statute of the Special Tribunal for Lebanon provide:
Article 15
Rights of suspects during investigation
He or she shall have the following rights of which he or she shall be informed by the Prosecutor prior to questioning, in a language he or she speaks and understands:
(c) The right to have legal assistance of his or her own choosing, including the right to have legal assistance provided by the Defence Office where the interests of justice so require and where the suspect does not have sufficient means to pay for it;
(e) The right to be questioned in the presence of counsel unless the person has voluntarily waived his or her right to counsel.
Article 16
Rights of the accused
4. In the determination of any charge against the accused pursuant to this Statute, he or she shall be entitled to the following minimum guarantees, in full equality:
(b) To have adequate time and facilities for the preparation of his or her defence and to communicate without hindrance with counsel of his or her own choosing. 
Statute of the Special Tribunal for Lebanon, attached to the Agreement between the UN and the Lebanese Republic on the Establishment of a Special Tribunal for Lebanon annexed to UN Security Council Resolution 1757 of 30 May 2007, Articles 15(c) and (e) and 16(4)(b).
IMT Charter (Tokyo)
Article 9(c) of the 1946 IMT Charter (Tokyo) provides:
Each accused shall have the right to be represented by counsel of his own selection, subject to the disapproval of such counsel at any time by the Tribunal. The accused shall file with the General Secretary of the Tribunal the name of his counsel. If an accused is not represented by counsel and in open court requests the appointment of counsel, the Tribunal shall designate counsel for him. In the absence of such request the Tribunal may appoint counsel for an accused if in its judgment such appointment is necessary to provide for a fair trial. 
Charter of the International Military Tribunal for the Far East, approved by an Executive Order, General Douglas MacArthur, Supreme Commander for the Allied Powers in Japan, Tokyo, 19 January 1946, amended on 26 April 1946, Article 9(c).
Universal Declaration of Human Rights
Article 11 of the 1948 Universal Declaration of Human Rights provides that everyone charged with a penal offence has the right to a trial “at which he has had all the guarantees necessary for his defence”. 
Universal Declaration of Human Rights, adopted by the UN General Assembly, Res. 217 A (III), 10 December 1948, Article 11.
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
Principle 15 of the 1988 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment provides: “Communication of the detained or imprisoned person with the outside world, and in particular his … counsel, shall not be denied for more than a matter of days.” 
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the UN General Assembly, Res. 43/173, 9 December 1988, Principle 15.
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
Principle 17 of the 1988 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment provides:
1. A detained person shall be entitled to have the assistance of a legal counsel. He shall be informed of his right by the competent authority promptly after arrest and shall be provided with reasonable facilities for exercising it.
2. If a detained person does not have a legal counsel of his own choice, he shall be entitled to have a legal counsel assigned to him by a judicial or other authority in all cases where the interests of justice so require and without payment by him if he does not have sufficient means to pay. 
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the UN General Assembly, Res. 43/173, 9 December 1988, Principle 17.
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
Principle 18 of the 1988 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment provides:
1. A detained or imprisoned person shall be entitled to communicate and consult with his legal counsel.
2. A detained or imprisoned person shall be allowed adequate time and facilities for consultation with his legal counsel.
3. The right of a detained or imprisoned person to be visited by and to consult and communicate, without delay or censorship and in full confidentiality, with his legal counsel may not be suspended or restricted save in exceptional circumstances, to be specified by law or lawful regulations, when it is considered indispensable by a judicial or other authority in order to maintain security and good order.
4. Interviews between a detained or imprisoned person and his legal counsel may be within sight, but not within hearing, of a law enforcement official.
5. Communications between a detained or imprisoned person and his legal counsel mentioned in the present principle shall be inadmissible as evidence against the detained or imprisoned person unless they are connected with a continuing or contemplated crime. 
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the UN General Assembly, Res. 43/173, 9 December 1988, Principle 18.
Basic Principles on the Role of Lawyers
The 1990 Basic Principles on the Role of Lawyers states:
Whereas the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment provides that a detained person shall be entitled to have the assistance of, and to communicate and consult with, legal counsel,
Whereas the Standard Minimum Rules for the Treatment of Prisoners recommend, in particular, that legal assistance and confidential communication with counsel should be ensured to untried prisoners.
1. All persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings;
2. Governments shall ensure that efficient procedures and responsive mechanisms for effective and equal access to lawyers are provided for all persons within their territory and subject to their jurisdiction, without distinction of any kind, such as discrimination based on race, colour, ethnic origin, sex, language, religion, political or other opinion, national or social origin, property, birth, economic or other status.
5. Governments shall ensure that all persons are immediately informed by the competent authority of their right to be assisted by a lawyer of their own choice upon arrest or detention or when charged with a criminal offence;
6. Any such persons who do not have a lawyer shall, in all cases in which the interests of justice so require, be entitled to have a lawyer of experience and competence commensurate with the nature of the offence assigned to them in order to provide effective legal assistance, without payment by them if they lack sufficient means to pay for such services;
7. Governments shall further ensure that all persons arrested or detained, with or without criminal charge, shall have prompt access to a lawyer, and in any case not later than forty-eight hours from the time of arrest or detention;
8. All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality. Such consultations may be within sight, but not within hearing, of law enforcement officials. 
Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August–7 September 1990, UN Doc. A/CONF.144/28/Rev.1, 1990, p. 118, endorsed by the UN General Assembly, Res. 45/166, 18 December 1990, preamble and §§1–2 and 5–8.
Cairo Declaration on Human Rights in Islam
Article 19(e) of the 1990 Cairo Declaration on Human Rights in Islam states that a defendant has the right to a fair trial “in which he shall be given all guarantees of defence”. 
Cairo Declaration on Human Rights in Islam, adopted at the 19th Session of the Islamic Conference of Foreign Ministers, Res. 49/19-P, Cairo, 5 August 1990, annexed to Letter dated 19 September 1990 from the permanent representative of Egypt to the UN addressed to the UN Secretary-General, UN Doc. A/45/421-S/21797, 20 September 1990, Article 19(e).
ILC Draft Code of Crimes against the Peace and Security of Mankind (1991)
Article 8 of the 1991 ILC Draft Code of Crimes against the Peace and Security of Mankind provides that an individual charged with a crime against the peace and security of mankind has the right:
(c) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
(e) … to defend himself in person and through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him and without payment by him in any such case if he does not have sufficient means to pay for it. 
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-third session, 29 April–19 July 1991, UN Doc. A/46/10, 1991, Article 8(c) and (e).
Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia
Paragraph 4 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia requires that all civilians be treated in accordance with Article 75 of the 1977 Additional Protocol I. 
Memorandum of Understanding on the Application of International Humanitarian Law between Croatia and the Socialist Federal Republic of Yugoslavia, Geneva, 27 November 1991, § 4.
Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina
Paragraph 2.3 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina requires that all civilians be treated in accordance with Article 75 of the 1977 Additional Protocol I. 
Agreement on the Release and Transfer of Prisoners, concluded between Representatives of Mr. Alija Izetbegović (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic Action), Representative of Mr. Radovan Karadžić (President of the Serbian Democratic Party), and Representative of Mr. Mate Boban (President of the Croatian Democratic Community), Geneva, 1 October 1992, § 2.3.
ICTY Statute
Article 18(3) of the 1993 ICTY Statute provides: “If questioned, the suspect shall be entitled to be assisted by counsel of his own choice.” 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, adopted by the UN Security Council, Res. 827, 25 May 1993, as amended by Res. 1166, 13 May 1998 and by Res. 1329, 30 November 2000, Article 18(3).
ICTY Statute
Article 21(4) of the 1993 ICTY Statute provides:
In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:
(b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
(d) … to defend himself in person … to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it. 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, adopted by the UN Security Council, Res. 827, 25 May 1993, as amended by Res. 1166, 13 May 1998 and by Res. 1329, 30 November 2000, Article 21(4)(b) and (d).
ICTR Statute
Article 17(3) of the 1994 ICTR Statute provides: “If questioned, the suspect shall be entitled to be assisted by counsel of his or her own choice.” 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994, adopted by the UN Security Council, Res. 955, 8 November 1994, as amended by Res. 1165, 30 April 1998, and by Res. 1329, 30 November 2000, Article 17(3).
ICTR Statute
Article 20(4) of the 1994 ICTR Statute provides:
In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:
(b) to have adequate time and facilities for the preparation of his or her defence and to communicate with counsel of his or her own choosing;
(d) … to defend himself or herself in person … to be informed, if he or she does not have legal assistance, of this right; and to have legal assistance assigned to him or her, in any case where the interest of justice so require, and without payment by him or her in any such case if he or she does not have sufficient means to pay for it. 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994, adopted by the UN Security Council, Res. 955, 8 November 1994, as amended by Res. 1165, 30 April 1998, and by Res. 1329, 30 November 2000, Article 20(4)(b) and (d).
ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)
Article 11(1) of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind provides:
An individual charged with a crime against the peace and security of mankind … shall be entitled without discrimination to the minimum guarantees due to all human beings with regard to the law and the facts and shall have the rights:
(c) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
(e) … to defend himself in person or through legal assistance of his own choosing. 
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-eighth session, 6 May–26 July 1996, UN Doc. A/51/10, 1996, Article 11(1)(c) and (e).
EU Charter of Fundamental Rights
Article 47(2) of the 2000 EU Charter of Fundamental Rights provides: “Everyone shall have the possibility of being advised, defended and represented.” 
Charter of Fundamental Rights of the European Union, signed and proclaimed by the European Parliament, the Council and the Commission of the European Union, Nice, 7 December 2000, Article 47(2).
EU Charter of Fundamental Rights
Article 48(2) of the 2000 EU Charter of Fundamental Rights provides: “Respect for the rights of the defence of anyone who has been charged shall be guaranteed.” 
Charter of Fundamental Rights of the European Union, signed and proclaimed by the European Parliament, the Council and the Commission of the European Union, Nice, 7 December 2000, Article 48(2).
Argentina
Argentina’s Law of War Manual (1969) provides: “In no case shall a prisoner of war appear in front of a tribunal … if the proceedings do not ensure to the accused person the rights and means of defence”. 
Argentina, Leyes de Guerra, RC-46-1, Público, II Edición 1969, Ejército Argentino, Edición original aprobado por el Comandante en Jefe del Ejército, 9 May 1967, § 2.074.
The manual further provides:
A prisoner of war has the right to be assisted by one of his inmates [or] to be defended by a qualified lawyer of his own choosing … In order to prepare his defence, counsel will have at least a period of two weeks before the examination of the case, as well as the necessary facilities; he can visit the accused freely and meet with him without witness. Counsel may also meet all witnesses on his behalf, including other prisoners of war. He will enjoy these facilities until the expiration of the delay to appeal. 
Argentina, Leyes de Guerra, RC-46-1, Público, II Edición 1969, Ejército Argentino, Edición original aprobado por el Comandante en Jefe del Ejército, 9 May 1967, § 2.086; see also § 5.029(3) (occupied territory).
Argentina
Argentina’s Law of War Manual (1989) states:
The right of prisoners to a defence is recognized and guaranteed. To this effect, prisoners have the right to be assisted by one of their fellow inmates, or to be defended by a qualified lawyer of their own choosing. 
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 3.30; see also § 5.09.
Australia
Australia’s Defence Force Manual (1994) states that prisoners of war “are entitled to be represented by a qualified lawyer of their choice and assisted by another PW [prisoner of war]”. 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 1042(d).
Australia
Australia’s LOAC Manual (2006) states that prisoners of war (PW) “are entitled to be represented by a qualified lawyer of their choice and assisted by another PW”. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 10.54.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Canada
Canada’s LOAC Manual (1999) states that prisoners of war and accused persons in occupied territory must be allowed to present their defence. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 10-7, § 76.
The manual further states that accused persons in occupied territory must “have the right to be assisted by a qualified advocate or counsel of their own choice”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 12-6, § 57.
The manual adds that the advocate or counsel of the accused “must be able to visit them freely and to be provided with the necessary facilities for preparing the defence”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 12-7, § 57.
With respect to non-international armed conflicts, the manual provides: “Accused persons shall be afforded all the necessary rights and means of defence.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 17-3, § 29(a).
Canada
Canada’s LOAC Manual (2001) states in its chapter on the treatment of prisoners of war (PWs):
No PW may be tried or punished for any offence, which was not, at the time of its commission, forbidden by International Law or the law of the Detaining Power … The PW must be allowed to present his or her defence. If tried by judicial proceedings, the PW must be represented by qualified counsel or advocate. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1040.2.
In its chapter on rights and duties of occupying powers, the manual states:
3. Accused persons have the right to present evidence necessary to their defence and may, in particular, call witnesses. They have the right to be assisted by a qualified advocate or counsel of their own choice, who must be able to visit them freely and to be provided with the necessary facilities for preparing the defence. Failing a choice by the accused, the Protecting Power may provide the accused with an advocate or counsel.
4. When an accused person has to meet a serious charge and the Protecting Power is not functioning, the occupying authorities must, subject to the consent of the accused, provide an advocate or counsel. Unless they voluntarily waive such assistance, accused persons must be aided by an interpreter, both during preliminary investigation and during the hearing in court. They have the right at any time to object to the interpreter and to ask for a replacement. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1232.3–4.
In its chapter on non-international armed conflicts, the manual states: “As a minimum, accused persons: a. shall … be afforded all the necessary rights and means of defence”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1716.2.a.
Colombia
Colombia’s Instructors’ Manual (1999) provides that during the investigation and the trial, “any accused has the right … to be assisted by a qualified lawyer of his own choosing or by an ex-officio lawyer”. 
Colombia, Derechos Humanos & Derecho Internacional Humanitario – Manual de Instrucción de la Guía de Conducta para el Soldado e Infante de Marina, Ministerio de Defensa Nacional, Oficina de Derechos Humanos, Fuerzas Militares de Colombia, Santafé de Bogotá, 1999, p. 11.
Djibouti
Djibouti’s Disciplinary Regulations (1982) states:
Art[icle] 91. – Fundamental guarantees
Sound disciplinary action requires: …
2. a possibility to defend oneself against a delivered decision …
3. statutory guarantees through:
– the right of defense, including prior notification of the documents related to the person concerned
Art[icle] 96
… [T]he accused soldier shall be notified about the relevant documents before appearing before any disciplinary body. He can have access to a legal counsel through assistance provided by a soldier of his choice. 
Djibouti, Décret no. 82-028/PR/DEF du 5 mai 1982 portant règlement de la discipline générale dans les Forces armées, Article 91 and 96.
Ecuador
Ecuador’s Naval Manual (1989) provides: “At a minimum, [procedural] rights must include the assistance of lawyer counsel, an interpreter and a fellow prisoner.” 
Ecuador, Aspectos Importantes del Derecho Internacional Marítimo que Deben Tener Presente los Comandantes de los Buques, Academia de Guerra Naval, 1989, § 11.8.1.
Germany
Germany’s Military Manual (1992) provides: “Prisoners of war shall be given the opportunity to present their defence.” 
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 725.
Hungary
Hungary’s Military Manual (1992) provides that accused prisoners of war shall be granted rights and means of defence. 
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 92.
Mexico
Mexico’s Army and Air Force Manual (2009), on the obligations of the occupying power under the 1949 Geneva Convention IV, states: “The rights of defence are recognized and guaranteed in that the accused has the right … to be defended by a qualified attorney of his own choice”. 
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 238(c).
Netherlands
The Military Manual (1993) of the Netherlands provides, with regard to non-international armed conflicts, that a suspect “must be given the necessary rights and means of defence”. 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. XI-5.
Netherlands
The Military Manual (2005) of the Netherlands states: “A prisoner of war may not … renounce the right of defence by authorized counsel if he is subject to criminal prosecution.” 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0237.
In its chapter on the protection of prisoners of war, the manual states: “A prisoner of war may not be convicted without having had an opportunity to present his defence … The prisoner of war is entitled to defence by an authorized counsel of his own choice, and to the calling of witnesses”. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0747.
In its chapter on the protection of the civilian population, the manual states: “The occupying power may institute courts martial in the occupied territory. No judgment may be delivered without prior, due process in which the accused is entitled to the assistance of legal counsel.” 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0838.
New Zealand
New Zealand’s Military Manual (1992) provides that a prisoner of war “must be allowed to present his defence and be represented by qualified counsel or an advocate”. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 932(2); see also § 1130 (civilian internees).
With respect to occupied territory, the manual states that accused persons “have the right to be assisted by a qualified advocate or counsel of their own choice, who must be able to visit them freely and to enjoy the necessary facilities for preparing the defence”. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1330(2) and (4).
The manual further states:
Insofar as civilians accused of war crimes are held by a Power of which they are not nationals, they are entitled to the safeguards of proper trial and defence, which shall not be less than those provided for prisoners of war by Articles 105 to 108 [of the 1949 Geneva Convention III]. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1716.
With respect to non-international armed conflicts, the manual states that, as a minimum, “the accused shall be … afforded all the necessary rights and means of defence”. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1815(2)(a).
Pakistan
The Manual of Pakistan Military Law (1987) states:
21. Full information to be given to accused. – As soon as practicable after an accused has been remanded for trial by a district or general court martial and at least twenty-four hours before he is brought up for trial, an officer must give him a copy of the summary, or (if there is no summary of evidence) the abstract of evidence, and apprise him of his rights in connection with the preparation of his defence (PAA [Pakistan Army Act] Rule 23(2)).
As soon as trial has been ordered, proper opportunity to prepare his defence must be afforded to the accused, who must be permitted to have free communication with any witnesses, whom he may desire to call, and with any friend, defending officer or legal advisor, who he may wish to consult if they are available ([PAA] Rule 23(1)).
As soon as practicable before he is arraigned for trial, an officer must hand over to him a copy of the charge-sheet, and, if necessary explain the charge-sheet charges to him. The officer in question must also inform him of his rights in connection with the securing of witnesses on his behalf (PAA Rule 24).
The accused, if charged jointly with any person, who he claims as a material witness for his defence may apply to be tried separately from that person, and the convening officer may grant a separate trial if the nature of the charge permits (PAA Rule 25).
The accused is entitled to have, (if he so desires it) a list of the officers, who will form the court, as soon as they have been detailed (PAA Rule 24(3)); he is not bound to give the prosecutor a list of his own witnesses (PAA Rule 119).
22. Securing legal aid for defence and prosecution. – The accused may himself arrange for the services of counsel to represent him at his trial. If he intends to be represented by counsel, he must give notice to that effect, so that the convening officer may, if he considers it desirable, obtain the services of counsel on behalf of the prosecutor. If the accused does not intend to be so represented but counsel has been obtained on behalf of the prosecutor, the convening officer must take steps to inform the accused to that effect not less than seven days before the trial, so that the accused may himself obtain counsel for his defence, if he so desires (PAA Rule 83). Similar notice should be given to the accused where the convening officer intends to appoint or apply for the services of an officer with legal qualifications to act as prosecutor at the trial.
23. Qualifications, duties, etc., of counsel and defending officer. – As to the qualifications of counsel, their functions, rights and duties, see PAA Rules 82 and 87.
A defending officer has in the absence of the defence counsel, same functions, rights and duties as counsel. The “friend” of the accused can only act as an advisor to the accused and has no right of audience (PAA Rule 81).
24. Assignment of defending officer for accused. – In order to ensure that an accused person is represented at his trial if he so desires, it is the duty of the officer referred to in paragraph 21 above, at the time he hands over the summary or abstract of evidence to the accused, to ask him to state in writing if he wishes to have a defending officer assigned to him by the convening officer; if he does so wish, the convening officer must use his best endeavours to secure the services of a suitable officer (PAA Rules 23(2)). 
Pakistan, Manual of Pakistan Military Law, Vol. 1, Ministry of Defence, Government of Pakistan, 1987, pp. 31–32; see also pp. 53–54.
The manual further states:
After trial has been ordered the commanding officer should satisfy himself that the following provisions are complied with: –
a. The accused must be warned for trial not less than 24 hours before the court assembles; must be informed by an officer of every charge on which he is to be tried; must be given a copy of the charge-sheet and a vernacular translation of the same and of the summary or abstract of evidence, and notice of the intention to call witnesses whose evidence is not contained in the summary or abstract and an abstract of their evidence and must be informed of the ranks, names and units of the officers, who are to form the court as well as of any waiting members (Rule 24).
b. The accused must be informed that on his giving the names of any witnesses for the defence, reasonable steps will be taken to procure their attendance.
c. The accused must be afforded proper opportunity for preparing his defence.
f. In a case of a joint trial, the accused persons should be informed of the intention to try them together and of their right to claim separate trials if the nature of the charge admits of it. 
Pakistan, Manual of Pakistan Military Law, Vol. 1, Ministry of Defence, Government of Pakistan, 1987, pp. 189–190; see also pp. 559–562.
In addition, the manual states:
Utmost liberty consistent with the interests of parties not before the court and with the dignity of the court itself should be allowed to the accused in making his defence … The court should, if necessary, adjourn to allow him time for its preparation. 
Pakistan, Manual of Pakistan Military Law, Vol. 1, Ministry of Defence, Government of Pakistan, 1987, p. 646.
Peru
Peru’s IHL Manual (2004) states that a person charged with a criminal offence under international humanitarian law must be provided with certain guarantees, including:
(1) right to a … defence;
(7) attendance of witnesses for the defence. 
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 32.n.(1) and (7).
Peru
Peru’s IHL and Human Rights Manual (2010) states that a person charged with a criminal offence under international humanitarian law must be provided with certain guarantees, including:
(1) right to … the means of defence;
(7) attendance of witnesses for the defence. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 33(n)(1) and (7), p. 251.
Philippines
The Joint Circular on Adherence to IHL and Human Rights (1991) of the Philippines provides: “Legal counsels of detainees or arrested persons must be granted free access to the detention center/jail where the detainees are held.” 
Philippines, Implementation Guidelines for Presidential Memorandum Order No. 393, dated 9 September 1991, Directing the Armed Forces of the Philippines and the Philippines National Police to Reaffirm their Adherence to the Principles of Humanitarian Law and Human Rights in the Conduct of Security/Police Operations, Joint Circular Number 2-91, Department of National Defense, Department of Interior and Local Government, 1991, § 2(b)(2).
Philippines
The Philippine Army Soldier’s Handbook on Human Rights and International Humanitarian Law (2006) provides:
While not in combat:
8. Inform the troops that a child taken in custody by government forces in an area of armed conflict should be informed of his/her constitutional rights and shall be treated humanely. Some of [these] basic rights are “the right to remain silent”, “the right to be presumed innocent until proven guilty”, “the right to be notified of the charge,” “right to counsel”, “right to presence of parents or guardian”, and the “right to confront and cross examine witnesses.” 
Philippines, Philippine Army Soldier’s Handbook on Human Rights and International Humanitarian Law, A Practical Guide for Internal Security Operations, 2006, p. 55, § 8.
[emphasis in original]
Spain
Spain’s LOAC Manual (1996) provides that the right of defence must be respected during criminal proceedings in occupied territories. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 2.7.b.(3).
Spain
Spain’s LOAC Manual (2007) states: “All courts must … afford the accused the rights and means of defence provided for under the Third Geneva Convention [1949 Geneva Convention III]”. 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 8.7.c.(2).
The manual also states: “Before any disciplinary award is pronounced, the accused must be given … an opportunity to explain his conduct, defend himself and call witnesses.” 
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 8.7.e.(2).
The manual further states that the right to defence must be respected during criminal proceedings in occupied territories.  
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 2.7.b.(3).
Sweden
Sweden’s IHL Manual (1991) considers that the fundamental guarantees for persons in the power of one party to the conflict as contained in Article 75 of the 1977 Additional Protocol I are a part of customary international law. 
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 2.2.3, p. 19.
Switzerland
Switzerland’s Basic Military Manual (1987) states: “Only military tribunals can try prisoners. They shall provide the accused with all recognized means of defence.” 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 106.
The manual also provides that an accused prisoner “shall have the possibility of expressing himself on the subject of the accusation of which he is charged”. 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 153.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) states: “In no circumstances whatsoever may [prisoners of war] be tried by a court … the procedure of which does not afford the accused the rights and means of defence laid down in Art. 105 [of the 1949 Geneva Convention III].” 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 202.
The manual further states: “No prisoner of war may be convicted without having had an opportunity to present his defence and the assistance of a qualified advocate or counsel.” 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 225.
In addition, the manual provides:
In any judicial proceedings against him, the prisoner of war is entitled to … defence by a qualified advocate or counsel of his own choice …
Defending Counsel must be given at least two weeks before the opening of the trial in which to prepare the defence of the accused. He must also be given all necessary facilities; in particular, he must be allowed freely to visit the accused and to interview him in private … The facilities are to remain available until the expiry of the time for appeal or petition against conviction. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 227.
With respect to situations of occupation, the manual states that the accused “have the right to be assisted by a qualified advocate or counsel of their own choice”, that the qualified advocate or counsel of the choosing of the accused “must be able to visit them freely and to enjoy the necessary facilities for preparing the defence” and that the “accused have the right to present evidence necessary to their defence”. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 571.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states in its chapter on the protection of civilians in the hands of a party to the conflict:
In the case of penal offences relating to the armed conflict, the basic principles of natural justice must be observed … These principles include the following: … the procedure shall … afford the accused before and during his trial all necessary rights and means of defence. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 9.6.
In its discussion on punishment of prisoners of war, the manual states:
In good time before the trial to enable him to exercise them, the accused must be informed of his rights to:
a. be assisted by a fellow prisoner of war;
b. be defended by a qualified advocate or counsel of his own choice;
The defending advocate must have at least two weeks before the opening of the trial for preparation of the defence. Up to the expiry of time for appeal or petition, he must be given all the necessary facilities including the following rights:
a. to visit the accused and interview him privately;
b. to interview defence witnesses, including prisoners of war. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, §§ 8.133.–8.133.3.
In its discussion on the administration of criminal law in occupied territory, the manual provides that the accused “are entitled to … assistance by a qualified advocate or counsel of their choice who must be able to visit them freely and have all necessary professional facilities for preparation of the defence”. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 11.58 11 .
In its chapter on internal armed conflict, the manual further states: “Indispensable judicial guarantees include as a minimum … adequate time and opportunity for the accused to prepare his defence.” 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 15.30.5.
United States of America
The US Field Manual (1956) reproduces Articles 96, 99 and 105 of the 1949 Geneva Convention III. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, §§ 172, 175 and 181.
The manual also restates Articles 71 and 72 of the 1949 Geneva Convention IV, concerning situations of occupation, and Article 123 of the 1949 Geneva Convention IV, regarding disciplinary punishment. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, §§ 441, 442 and 330.
United States of America
The US Air Force Pamphlet (1976) provides: “In no event may [a prisoner of war] be tried … under procedure which fails to accord the rights of defense set forth in Article 105 [of the 1949 Geneva Convention III].” It adds that Article 105 of the 1949 Geneva Convention III “gives [the accused] the right to counsel of his choice” and that the prisoner of war’s “counsel will have the opportunity to prepare an adequate defense”. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 13-8.
The manual also states: “Among other rights, accused persons are assured the right to … obtain defense counsel”. 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 14-6.
United States of America
The US Air Force Commander’s Handbook (1980) states that prisoners must “be allowed the help of a lawyer”. 
United States, Air Force Pamphlet 110-34, Commander’s Handbook on the Law of Armed Conflict, Judge Advocate General, US Department of the Air Force, 25 July 1980, § 4-2(c).
United States of America
The US Naval Handbook (1995) provides: “At a minimum, [procedural] rights must include the assistance of lawyer counsel.” 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 11.7.1.
United States of America
The US Manual for Military Commissions (2007) states:
Counsel in a military commission. Military trial and defense counsel shall be detailed to military commissions by the Chief Prosecutor and Chief Defense Counsel, respectively. Assistant trial and associate or assistant defense counsel may also be detailed. Civilian trial counsel may be detailed by the Chief Prosecutor, with the approval of the convening authority and, if such counsel are employed by another government agency, with the approval of the head of that agency. Should an accused, pursuant to his request, be deemed competent to represent himself, detailed defense counsel shall serve as standby counsel.  
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part II, Rule 501(b), p. II-19.
United States of America
The US Naval Handbook (2007) states:
Prisoners of war prosecuted for war crimes committed prior to capture, or for serious offenses committed after capture, are entitled to be tried by the courts that try the captor’s own forces and are to be accorded the same procedural rights. At a minimum, these rights must include the assistance of lawyer counsel. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 11.3.1.1.
United States of America
The US Manual for Military Commissions (2010) states:
Composition and personnel of military commission
(b) Counsel in a Military Commission. Military trial and defense counsel shall be detailed to military commissions by the Chief Prosecutor and Chief Defense Counsel, respectively. Assistant trial and associate or assistant defense counsel may also be detailed. Civilian trial counsel may be detailed by the Chief Prosecutor, with the approval of the convening authority and, if such counsel are employed by another government agency, with the approval of the head of that agency. Should an accused, pursuant to his request, be deemed competent to represent himself, detailed defense counsel shall serve as standby counsel. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 501(b), p. II-22.
The manual also states:
Accused’s rights to counsel
(a) In general. The accused has the right to be represented before a military commission by civilian counsel if provided at no expense to the Government, by military counsel detailed under R.M.C. [Rules for Military Commissions] 503, or by military counsel of the accused’s own selection, if reasonably available. Except as otherwise provided by section (b) of this rule, the accused is not entitled to be represented by more than one military counsel …
(b) Capital Offenses. In any case in which the trial counsel makes a recommendation to the convening authority pursuant to R.M.C. 307(d) that a charge be referred to a capital military commission, or in which the convening authority refers a charge to a capital military commission, the accused has the right to be represented in accordance with section (a) above, and by at least one additional counsel who is learned in applicable law relating to capital cases. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 506(a) and (b), p. II-32.
The manual further states:
Pleas
(c) Advice to accused. Before accepting a plea of guilty, the military judge shall address the accused personally and inform the accused of, and determine that the accused understands, the following:
(2) If the accused is not represented by counsel, that the accused has the right to be represented by counsel at every stage of the proceedings. 
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, Rule 910(c)(2), pp. II-101 and II-102.
Note. Numerous pieces of domestic legislation provide for the right of accused persons to have legal assistance, sometimes of their own choosing and/or for free. 
See, e.g., Ethiopia, Penal Code, 1957, Article 292; Constitution, 1994, Article 20(5); Georgia, Constitution, 1995, Article 18(5) and 42(3); Code of Criminal Procedure, 1998, Articles 11, 17, 74 and 77; India, Constitution, 1950, Article 22(1); Kenya, Constitution, 1992, Article 77(2); Kuwait, Constitution, 1962, Article 34; Kyrgyzstan, Constitution, 1993, Articles 40 and 88; Mexico, Constitution, 1917, Article 20(V)(VII) and (IX); Russian Federation, Constitution, 1993, Article 48.
These have not all been listed here.
Afghanistan
Afghanistan’s Interim Criminal Procedure Code (2004) states:
Article 5. Suspect and Accused.
7. The police, the Saranwal [prosecutor] and the Court are duty bound to clearly inform the suspect and the accused before interrogation and at the time of arrest about his or her right to remain silent, [the] right to representation at all times by defence counsel, and [the] right to be present during searches, line-ups, expert examinations and [the] trial.
Article 18. Defence Counsel.
1. Legal assistance to the suspect and the accused requires the service of a qualified professional.
3. The suspect and the accused can be, in any case, assisted by a defence counsel of their choice.
Article 19. Legal Aid.
1. The suspect or the accused … [who are] financially unable to appoint a defence attorney are entitled to have a free defence attorney appointed …
Article 38. Defence Counsel Presence.
1. The defence counsel has the right to be present at all times during the interrogation of the suspect.
2. The suspect and the defence counsel have the right to be present during searches, confrontations, line-up procedures and expert examinations as well as during the trial.
3. In the investigation phase, the Saranwal and the judicial police shall notify the suspect and his defence counsel of searches, confrontations, line-up procedures and expert examinations in order to allow them to be present. This duty can be waived only when there is an urgent need to conduct the said operations, which is defined as when it is a flagrante delicto crime or there is a fear of the loss of evidential facts.
Article 43. Access of the Accused to the Findings of the Investigation.
1. The accused and his defence counsel are entitled to examine the documents contained in the file mentioned in the last paragraph of article 39 [file containing all the deeds formed during the investigations] and the objects under seizure.
Article 52. Order of the Hearing.
3. The Primary Saranwal, the accused and his defence counsel have the right to be always present.
Article 53. Conduct of the Hearing.
2. The accused and his defence counsel have the right to be present.
Article 81. Cases of Revision.
1. A revision of the final decision in cases that have resulted in the sentencing of a person for misdemeanors or felonies is permitted at all times in the following [situations]:
f. When the sentence was adopted at the end of a process conducted without informing the accused by regular notifications or not giving him the possibility to appear so to deprive him of the right of defence or when a real impediment for appearing was not known or disregarded by the Court.
Article 96. Interim Defence Counsel.
1. [Until there are] available in the country a sufficient number of defence counsels, as established in article 18, the suspect or the accused may [seek] recourse to the assistance of an educated person having some knowledge of legal issues.
2. To this end, the President of each Court shall institute a list of persons having the qualities indicated in the previous paragraph, following the [provided guidelines]. 
Afghanistan, Interim Criminal Procedure Code, 2004, Articles 5(7), 18(1) and (3), 19(1), 38(1)–(3), 43, 52(3), 53(2), 81(1)(f) and 96.
Afghanistan
Afghanistan’s Juvenile Code (2005) states:
Article 22. The right to have an attorney.
… In all stages of investigation and trial, the child shall have the right to a defence counsel….
In case the parents or legal representative cannot afford a defence counsel … , the juvenile court shall appoint a defence counsel … [at] government cost.
… The legal representative, defence counsel or … of the child ha[ve] the right to be notified and participate in all stages of legal proceedings carried out by the prosecutor or the court.
… Absence of [the] child’s legal representative during investigation cannot stop the investigation process unless the prosecutor deems his [or] her presence necessary.
Article 34. Attending the hearing.
1. The child, legal representative, defence counsel, legal aid, witnesses and members of the judiciary … can attend the hearings. If [the] presence of [the] legal representative is not [in] the child’s interest, or if his presence can disturb the proceeding of the trial, the court can order his expulsion from the trial session.
Article 65. Temporary defence counsel.
Since there are not sufficient defence counsels at present in the country, the suspected or accused child may refer to educated people who have knowledge of legal issues.
To this end, the president of each court shall prepare [a] list of qualified people that are [available] through the [M]inistry of [J]ustice in the capital and through [the] administrative division of governor’s office in the provinces . 
Afghanistan, Juvenile Code, 2005, Articles 22, 34(1) and 65.
The Code also states: “Legal representatives [may include] parents, guardians, executors, relatives, attorney or legal guardian of a child.”  
Afghanistan, Juvenile Code, 2005, Article 4(7).
Afghanistan
Afghanistan’s Legal Aid Regulation (2008) states:
Article 2. Objectives.
The objectives of this regulation are:
1. [To provide] free legal aid for indigent suspects and the accused.
2. [To ensure] the rights of suspects and the accused while providing legal aid.
3. [To provide] continuous reliable legal aid for indigent suspects and the accused.
4. [To organize the] free legal aid provided by advocates.
5. [To coordinate] the activities of Legal Aid Department and accredited legal aid-providing NGOs, both in criminal and civil cases.
6. [To monitor the provision of] legal aid and evaluate [the] performance of legal aid providers.
Article 5. Introduction of Suspects and the Accused.
(1) The police, prosecution institutions and courts shall be obliged to [refer] the indigent suspects and the accused to [the] Ministry of Justice in [the] Capital and its offices in provinces or [to the] authorities stated in paragraph (1) of article 15 of this regulation for the purpose of [providing] legal aid.
Article 6. Application for legal aid.
(1) Legal aid providers shall be assigned upon request of the institutions stated in paragraph (1) of article 5, or [upon] written request of an indigent suspect[,] the accused or their relatives.
(2) [The] Legal Aid Department and its provincial offices or [the] authorities stated in paragraph (1) of article 15 of this regulation shall be obliged to assign [a] legal aid provider upon request of [the] institutions stated in paragraph (1) of article 5 of this regulation or upon application for legal aid …
Article 11. Priority.
[The] Legal Aid Department and [the] authorities stated in paragraph (1) of article 15 of this regulation shall be obliged to prioritize children, guardian-less women, deaf, blind, dumb or deaf and dumb persons, disabled persons, returnees and internally displaced people while providing legal aid.
Article 13. Types of legal aid.
The legal aid shall be delivered in the following forms:
1. Representation and defense of the rights of suspects and the accused before the police, prosecution offices or courts.
2. Provision of legal advice for indigent suspects and the accused.
3. Representation and defense of the rights of children and indigent women in civil cases and provision of legal advice for them in accordance with the provisions of this regulation.
Article 14. Structure.
(1) Legal aid [as] stated in this regulation shall be provided by [the] Legal Aid Department established within the structure of [the] Ministry of Justice.
(2) [The] Legal Aid Department shall have provincial offices operating in accordance with the provisions of this regulation.
Article 15. Provision of legal aid by other authorities.
(1) Legal aid may also be provided through [the] following authorities in accordance with this regulation:
1.1. Bar Association’s advocates in accordance with provisions of the related law.
1.2. NGOs accredited as legal aid providers.
1.3. Law clinics.
Article 28. Informing indigent suspects and the accused of their rights.
(1) The police, prosecution offices, courts, prisons, detention centers and juvenile centers shall be obliged to inform the indigent suspects and the accused of their rights stated in this regulation.
(2) [The] authorities stated in paragraph (1) of this article shall fully cooperate with the legal aid providers. 
Afghanistan, Legal Aid Regulation, 2008, Articles 2, 5(1), 6 (1–2), 11, 13–15 and 28.
The Regulation adopts the following definitions:
1. Legal aid: Defending the rights of indigent suspects and the accused or providing them with legal advice in any stages of prosecution and defending the rights of indigent children and women in civil cases on the basis of this regulation.
2. Legal aid provider: An advocate who defends the rights of indigent suspects and the accused in any stages of the prosecution or defends the rights of indigent children and women in civil cases according to the provisions of this regulation.
3. Indigent: A person whose income is not sufficient to cover his/her livelihood. 
Afghanistan, Legal Aid Regulation, 2008, Article 4.
Afghanistan
Afghanistan’s Military Criminal Procedure Code (2010) states:
Article 14. Rights of the Accused.
(1) Persons responsible for [the processing of criminal] investigations and trials are obliged, before taking any action, to inform the suspect or accused of the following rights:
3- The right to have a defence counsel.
5- The right to [be present during the] inspection of the place, line-up procedures and examination by experts.
Article 21. Investigation Execution.
(2) The interrogation of the suspect must be conducted in the presence of his defence counsel.
(3) Any kind of interrogation of the suspect cannot be done before determining his defence counsel, unless he defends himself.
Article 23. Presence of Defence Counsel.
(1) The defence counsel of the suspect or the accused has the right to be present at all stages of the interrogation and trial.
(2) The defence counsel has the right to collect and study all the documents and evidence relevant to the case at all stages of the case, … to present any relevant questions to the court and to receive information to clarify the case …
(3) The defence counsel and the accused have the right to be present during searches, [the] interrogation of witnesses, the collection of physical evidence and [the] examination by expert witness.
(4) The prosecutor is required to inform the defence counsel and accused 72 hours before a search, interview, interrogation, line-up procedure or inspection with expert witnesses arranged by the prosecutor or the interrogator.
(5) In cases where the prosecutor feels that there is a possibility of loss of evidence of the charges, the prosecutor may collect the evidence without previously informing the accused or his [or] her defence counsel. In [such] case[s], the prosecutor is … to ensure that all received information [is to] be presented to the accused or his [or] her defence counsel [within] 72 hours after collection.
Article 32. Access to Witnesses and Evidence.
The prosecutor, the accused, and his defence counsel have equal rights before the law and [the] court to obtain lawful witnesses and other lawful evidence.
The procedure for … [obtaining] testimony and collecting other provable evidence and [for obtaining] defence counsel’s access to documents recorded in the military court and [to] the evidence shall be performed in conformity [with] the provisions of the Interim Criminal Procedure Code for the courts.
Article 39. Good Order of the Trial.
(3) The … defence counsel … ha[s] the right to be present [during] the judicial sessions, however, in case the … defence counsel disturb[s] the order of the trial, the chief panel judge is authorized … [to] exclude the person who disturbed the trial from part of the trial. In this case, [with regard] to the [proceedings that] have been executed in the absence of the … defence counsel, [the latter] will be [provided with] information of the proceedings after their next appearance. 
Afghanistan, Military Criminal Procedure Code, 2010, Articles 14(1)(3) and (5), 21(2) and (3) and (3), 23(1)–(5), 32 and 39(3).
The Code also states that it is applicable, inter alia, to “prisoners of war and persons who are in the custody of the armed forces or [who are] serv[ing] a period of confinement in an armed forces confinement facility”. 
Afghanistan, Military Criminal Procedure Code, 2010, Article 3(7).
Argentina
Argentina’s Code of Criminal Procedure (1991) states: “Incommunicado detention may not prevent the detainee from communicating with his counsel promptly before the beginning of his statement before the judge.” 
Argentina, Code of Criminal Procedure, 1991, Article 205.
Argentina
Argentina’s Law on the Protection of Children’s and Adolescents’ Rights (2005) states:
Article 27 (Minimum procedural guarantees. Guarantees in judicial or administrative proceedings)
In any judicial or administrative proceedings affecting children and adolescents, the governmental bodies shall guarantee [that children and adolescents enjoy] the following rights and guarantees, in addition to all those rights provided for in the National Constitution [of Argentina], in the Convention on the Rights of the Child, in international treaties ratified by the Argentine Nation and any laws promulgated in consequence of such treaties:
a) To be heard before the competent authority every time the child or adolescent requests so;
c) To be assisted by a legal counsel preferably specialized in childhood and adolescence since the beginning of the judicial proceedings involving him or her. In case [the child or adolescent] lacks economic resources, the State shall assign legal assistance to him or her ex officio.
d) To actively participate during the entire proceedings. 
Argentina, Law on the Protection of Children’s and Adolescents’ Rights, 2005, Article 27(a), (c) and (d).
Bangladesh
Bangladesh’s International Crimes (Tribunal) Act (1973) states that the “violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949” is a crime. 
Bangladesh, International Crimes (Tribunal) Act, 1973, Section 3(2)(e).
Bosnia and Herzegovina
Bosnia and Herzegovina’s Criminal Procedure Code (2003) states:
(1) The suspect or accused has a right to present his own defense or to defend himself with the professional aid of a defence attorney of his own choice.
(2) If the suspect or accused does not have a defence attorney, a defence attorney shall be appointed to him in cases as stipulated by this Code.
(3) The suspect or accused must be given sufficient time to prepare a defence. 
Bosnia and Herzegovina, Criminal Procedure Code, 2003, Article 7; see also Articles 39 and 47.
Cambodia
Cambodia’s Law on the Establishment of the ECCC (2001), as amended in 2004, provides in its chapter on investigations:
During the investigations, the Suspects shall be unconditionally entitled to assistance of counsel of their own choosing, and to have legal assistance assigned to them free of charge if they cannot afford it, as well as the right to interpretation, as necessary, into and from a language they speak and understand. 
Cambodia, Law on the Establishment of the ECCC, 2001, as amended in 2004, Article 24 new.
The Law’s chapter on the proceedings of the Extraordinary Chambers further provides:
In determining charges against the accused, the accused shall be equally entitled to the following minimum guarantees, in accordance with Article 14 of the International Covenant on Civil and Political Rights.
b. to have adequate time and facilities for the preparation of their defence and to communicate with counsel of their own choosing;
d. to be tried in their own presence and to defend themselves in person or with the assistance of counsel of their own choosing, to be informed of this right and to have legal assistance assigned to them free of charge if they do not have sufficient means to pay for it. 
Cambodia, Law on the Establishment of the ECCC, 2001, as amended in 2004, Article 35 new.
Chile
Chile’s Code of Criminal Procedure (1906), as amended in 2007, states:
Any accused person, irrespective of whether they have been charged, and before the commencement of a criminal trial, may claim the rights accorded to him or her by the laws and those which the tribunal deems necessary for his or her defence.
In particular, he or she may:
1. Designate a lawyer and a representative in court. 
Chile, Code of Criminal Procedure, 1906, as amended in 2007, Article 67(1).
China
China’s Criminal Procedure Law (1979), as amended in 1996, states:
Article 11. … A defendant shall have the right to defence, and the People’s Courts shall have the duty to guarantee his defence.
Article 32 In addition to exercising the right to defend himself, a criminal suspect or a defendant may entrust one or two persons as his defenders. The following persons may be entrusted as defenders:
(1) lawyers;
(2) persons recommended by a public organization or the unit to which the criminal suspect or the defendant belongs; and
(3) guardians or relatives and friends of the criminal suspect or the defendant.
Persons who are under criminal punishment or whose personal freedom is deprived of or restricted according to law shall not serve as defenders.
Article 34 If a case is to be brought in court by a public prosecutor and the defendant involved has not entrusted anyone to be his defender due to financial difficulties or other reasons, the People’s Court may designate a lawyer that is obligated to provide legal aid to serve as a defender.
If the defendant is blind, deaf or mute, or if he is a minor, and thus has not entrusted anyone to be his defender, the People’s Court shall designate a lawyer that is obligated to provide legal aid to serve as a defender.
If there is the possibility that the defendant may be sentenced to death and yet he has not entrusted anyone to be his defender, the People’s Court shall designate a lawyer that is obligated to provide legal aid to serve as a defender.  
China, Criminal Procedure Law, 1979, as amended in 1996, Articles 11, 32 and 34.
China
China’s Organic Law of the People’s Courts (1979), as amended in 2006, states:
The accused has the right to defence. Besides defending himself, the accused has the right to delegate a lawyer to defend him. He may also be defended by a citizen recommended by a people’s organization or his unit of employment, by a citizen approved by the people’s court, or by a near relative or guardian. The people’s court may also, when it deems it necessary, appoint a counsel to defend him. 
China, Organic Law of the People’s Courts, 1979, as amended in 2006, Article 8.
China
China’s Constitution (1982), as amended in 2004, states: “Except in special circumstances as specified by law, all cases in the people’s courts are heard in public. The accused has the right to defence.” 
China, Constitution, 1982, as amended in 2004, Article 125.
Colombia
Colombia’s Criminal Procedure Code (2004) states:
In the course of criminal proceedings, once a person has been charged with an offence, he or she has the right …:
e) to be heard, assisted and represented by his or her own lawyer or a lawyer nominated by the State,
g) to communicate in private with his or her lawyer before appearing before the authorities,
i) to have reasonable time and adequate means to prepare his or her defence. In exceptional cases, he or she may request an extension which must be duly justified and necessary for the hearings which he or she must attend,
j) to request, know and to dispute evidence. 
Colombia, Criminal Procedure Code, 2004, Article 8(e), (g) and (i)–(j).
Democratic Republic of the Congo
The Democratic Republic of the Congo’s Military Judiciary Code (2002) provides:
Book 1: Organization
Article 63:
The military judge proceeds to the designation of defence counsel to the benefit of a defendant in cases where the latter has not chosen one.
Book III: Procedure before the military jurisdiction
Titre II: Procedure before the military courts and tribunals
Article 224:
In time of war, under a state of siege or emergency, or at the occasion of an operation aimed at maintaining or re-establishing public order, the defendant is entitled, without formality or previous summons, to have heard, in his defence, any witness, by declaring him to the Officier du Ministère Public before the opening of the hearing, subject to the discretionary power of the presiding judge.
Article 225:
The defendant has the right freely to communicate with his counsel. The latter has the right to inspect or to obtain, at his own costs, a copy of all or parts of the proceedings, without, however, the meeting of the Tribunal being delayed by this.
Article 229:
In time of war, the military jurisdiction can grant a reasonable period of time to the defendant cited or directly taken before it, in order to allow him to prepare his defence.
This period of time must not exceed 24 hours.
Article 243:
[The presiding judge] reminds the defendant of the offence for which he is prosecuted and advises him of the right, given to him by the law, to say everything which is useful for his defence. 
Democratic Republic of the Congo, Military Judiciary Code, 2002, Articles 63, 224–225, 229 and 243.
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 
Denmark, Military Criminal Code, 2005, § 36(2).
Fiji
Fiji’s Geneva Conventions Promulgation (2007), as amended to 2009, states:
Legal representation of certain persons
9.—(1) The court before which:
(a) any person is brought up for trial for an offence under section 3 or section 4 of this Promulgation; or
(b) a protected prisoner of war is brought up for trial for any offence;
shall not proceed with the trial unless -
(i) the accused is represented by counsel; and
(ii) it is proved to the satisfaction of the court that a period of not less than 14 days has elapsed since instructions for the representation of the accused at the trial were first given to the counsel;
and if the court adjourns the trial for the purpose of enabling the requirements of this subsection to be complied with, then, notwithstanding anything in any other law, the court may remand the accused for the period of the adjournment.
(2) Where the accused is a protected prisoner of war, in the absence of counsel accepted by the accused as representing him or her, counsel instructed for the purpose on behalf of the protecting power shall, without prejudice to the requirements of paragraph (ii) of subsection (1), be regarded for the purposes of that subsection as representing the accused.
(3) If the court adjourns the trial in pursuance of subsection (1) by reason that the accused is not represented by counsel, the court shall direct that a counsel be assigned to watch over the interests of the accused at any further proceedings in connection with the offence. 
Fiji, Geneva Conventions Promulgation, 2007, as amended to 2009, § 9(1)–(3).
Guatemala
Guatemala’s Law on the Protection of Childhood and Adolescence (2003) states:
ARTICLE 154. Principle of the inviolability of the defence. Adolescents shall have the right to be assisted by counsel, from the beginning of the investigation until they are subjected to the sanction imposed on them.
ARTICLE 155. Rights to defence. Adolescents shall have the right to present the evidence and arguments necessary for his or her defence and to refute [evidence or arguments] when necessary.
ARTICLE 156. Principle of contradiction. Adolescents have the right to be heard, to present evidence, to interrogate witnesses and to refute counter-arguments. The latter shall be guaranteed by the intervention of counsel and the prosecutor. 
Guatemala, Law on the Protection of Childhood and Adolescence, 2003, Articles 154–156.
The Law also states: “Counsel. From the beginning of an investigation and during the entire process, adolescents must be assisted by counsel and no testimony may be taken from them without the assistance of counsel.” 
Guatemala, Law on the Protection of Childhood and Adolescence, 2003, Article 167.
Guinea
Guinea’s Code of Military Justice (2011) states:
CHAPTER I: THE MILITARY COURT IN TIMES OF PEACE
SECTION V: DEFENCE
Article 13: The defence before Military Courts is provided by lawyers who are members of the Bar Association of Guinea or are in training or by military officers or non-commissioned officers authorized by the Ministry of Defence.
Subject to special provisions laid down in international conventions, lawyers of foreign nationality are not admitted [to appear] before Military Courts.
Article 14: The defending officer and non-commissioned officer are subject to the same obligations and enjoy the same rights and prerogatives as a lawyer. Their services are nevertheless free of charge.
Subject to the punishments laid down by the law, lawyers, officers and all non-commissioned officers of the defense are bound by military and professional secrecy.
CHAPTER II: THE MILITARY TRIBUNAL DURING ARMED CONFLICTS
Article 16: All other provisions laid down for the functioning and operation of Military Courts in times of peace are applicable to Military Courts in times of armed conflicts. 
Guinea, Code of Military Justice, 2011, Articles 13–14 and 16.
The Code also states:
CHAPTER III: PROCEEDINGS BEFORE THE COURT
SECTION I: IN TIMES OF PEACE
Article 58: The accused or the defendant can communicate freely with their counsel.
SECTION II: DURING ARMED CONFLICTS
Article 65: … [T]he procedure before courts during an armed conflict is identical to the one applicable in times of peace. 
Guinea, Code of Military Justice, 2011, Articles 58 and 65.
Iraq
Iraq’s Law of the Supreme Iraqi Criminal Tribunal (2005) states: “All persons shall be equal before the Tribunal.” 
Iraq, Law of the Supreme Iraqi Criminal Tribunal, 2005, Article 19(1).
The Law further states:
When bringing charges against the accused pursuant to this Law, the accused shall be entitled to a fair impartial trial in accordance with the following minimum guarantees:
B. To have adequate time and facilities for the preparation of his defense and to communicate freely with counsel of his own choosing and to meet with him in private. The accused is entitled to have non-Iraqi legal representation so long as the principal lawyer of such accused is Iraqi;
D. To be tried in his presence, and to be assisted by counsel of his own choosing, or to be informed of his right to request legal assistance if he cannot afford it; and to have the right to seek such assistance that will allow him to appoint a lawyer without paying the fees. 
Iraq, Law of the Supreme Iraqi Criminal Tribunal, 2005, Article 19(4)(B) and (D).
Ireland
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that any “minor breach” of the 1949 Geneva Conventions, including violations of Article 49 of the Geneva Convention I, Article 50 of the Geneva Convention II, Articles 84, 96, 99 and 104 of the Geneva Convention III and Articles 71, 72 and 123 of the 1949 Geneva Convention IV, and of the 1977 Additional Protocol I, including violations of Article 75(4)(a), as well as any “contravention” of the 1977 Additional Protocol II, including violations of Article 6(2)(a), are punishable offences. 
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Israel
Israel’s Order on Security Regulations (2009), which establishes a juvenile court in the West Bank for a period of one year, states:
a. Juvenile military court has the power to appoint a lawyer for the child if it finds that is in the child’s interest.
c. If there is not a lawyer for the child, the court must assist the child in cross-examination. 
Israel, Order on Security Regulations, 2009, Article 46.L.a (a) and (c).
The Order defines a “child” as “anyone under 16 years, and a suspect or accused who has not attained 16 at the time of submitting the list of charges”. 
Israel, Order on Security Regulations, 2009, Article 46.A.
Israel
Israel’s Order regarding Security Provisions (Judea and Samaria) (2009) states with regard to the appointment of a lawyer by a military court:
(a) If a person who is accused before a court panel of three, and has been indicted of an offense with a penalty of ten years or more, has not chosen an attorney, the court shall appoint him an attorney with his consent.
(b) The court may, for special reasons, at the request of the parties or at its own initiative – appoint a defense attorney for an accused person for whom there is no duty to appoint a defense attorney. 
Israel, Order regarding Security Provisions (Judea and Samaria), 2009, Article 77.
Japan
Japan’s Law Concerning the Treatment of Prisoners of War and Other Detainees in Armed Attack Situations (2004) states:
Article 80
(1) The prisoner-of-war camp commander shall, in cases where any of the persons listed in the following items request to visit detainees, permit detainees to receive the visit. In this case, no staff member of the prisoner-of-war camp attends a visit for a detainee:
(iii) Defence counsels in criminal cases of the detainee.
Article 82
(1) The Minister of Defence may order the prisoner-of-war camp commander … to restrict or suspend the visits prescribed in the provision [contained in] the preceding two Articles, when the Minister of Defence finds it extremely necessary to do so …
(2) The Minister of Defence shall, when he/she finds the restriction or suspension of visits set forth in the preceding paragraph has become unnecessary, order immediately the prisoner-of-war camp commander to terminate such rescission or suspension of the visits. 
Japan, Law Concerning the Treatment of Prisoners of War and Other Detainees in Armed Attack Situations, 2004, Articles 80(1)(iii) and 82(1) and (2).
Libyan Arab Jamahiriya
The Libyan Arab Jamahiriya’s Code of Criminal Procedure for Armed Personnel (1999) states:
The court must delegate an advocate to defend the defendant when he commits a crime punishable by imprisonment at least if said defendant did not appoint one. The defendant may appoint an advocate in any other crimes. The defense is entitled to review investigation documents and may, on behalf of the defendant, exercise all rights prescribed by the law. 
Libyan Arab Jamahiriya, Code of Criminal Procedure for Armed Personnel, 1999, Article 51.
Norway
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the Geneva Conventions of 12 August 1949 … [and in] the two additional protocols to these Conventions … is liable to imprisonment. 
Norway, Military Penal Code, 1902, as amended in 1981, § 108.
Norway
Norway’s ICC Act (2001) provides:
5. The suspects right to a defence counsel
A person who is suspected or accused of offences that come within the jurisdiction of the [International Criminal] Court is entitled to the assistance of a defence counsel of his own choice at every stage of the case. The said person shall be informed of this prior to being questioned.
If the Court has requested surrender of a person sought or other assistance from the Norwegian authorities, an official defence counsel shall be appointed for him on the same terms as provided by section 16, first paragraph, first sentence, and section 20 of the Act relating to the surrender of offenders, and sections 97, 98, 100, second paragraph, and 100a of the Criminal Procedure Act. 
Norway, ICC Act, 2001, § 5.
Peru
Peru’s New Code of Criminal Procedure (2004) states:
Every person shall have an inviolable and unrestricted right … to be assisted by a legal counsel of his or her choice or, if necessary, by a court-appointed defence counsel from the moment the person is summoned or detained by an authority.
Every person shall also have the right to have reasonable time to prepare his or her defence; to practice his or her own defence; to participate in the evidentiary proceedings on an equal footing; and to use any pertinent means of proof under the conditions stipulated by the law. The exercise of the right to defence shall cover every aspect of the proceedings, in the form stated by law. 
Peru, New Code of Criminal Procedure, 2004, Article IX(1).
Peru
Peru’s Code of Military and Police Justice (2006) states: “The right to a defence shall be guaranteed at all times, and shall be comprehensive [and] uninterrupted”. 
Peru, Code of Military and Police Justice, 2006, Article XI.
The Code also states:
Any accused shall benefit from the judicial guarantees necessary for his or her defence; the police, prosecutor and judges shall have the duty to inform the accused of the following rights immediately and in a way he or she understands:
3. [The right] to be assisted by legal counsel from the first procedural act. 
Peru, Code of Military and Police Justice , 2006, Article 208(3).
The Code further states: “A person deprived of his or her liberty shall have his or her right of defence guaranteed during the judicial process and during the enforcement of the penalty.” 
Peru, Code of Military and Police Justice, 2006, Article 469.
Peru
Peru’s Military and Police Criminal Code (2010), which includes provisions on crimes under international humanitarian law, states in the Preliminary Title: “In every proceeding, the right to defence must be guaranteed.” 
Peru, Military and Police Criminal Code, 2010, Article XI.
In a chapter entitled “Procedural principles and guarantees”, the Code states:
1. Every member of the military or the police has the right to be informed of their rights, … and to be assisted by a defence lawyer of his own choosing or, if the case be, by a legal aid lawyer from the moment in which he or she is summoned or detained by the authorities.
He or she also has the right to be given reasonable time to prepare his or her defence; to exercise his or her right to material self-defence; to intervene on an equal bases in the gathering and processing of evidence; and to use the pertinent means of proof according to the law. 
Peru, Military and Police Criminal Code, 2010, Article 148(1).
In a chapter entitled “The accused”, the Code also states:
The police, the prosecutor and the judges must inform the accused immediately and comprehensively of the following rights in order to ensure that he or she benefits from the safeguards essential for his or her defence:
3. To be assisted by a defence lawyer from the very beginning of the proceedings;
5. To make a statement within twenty-four hours of having been detained;
6. To amend his or her statement, with his or her defence lawyer being present, if the statement is relevant and if the amendment is not used as a means of delaying the proceedings. The amendment shall be made every time that the accused voices his intent to do so;
9. To have access to all available information from the moment at which the accused is informed of the existence of proceedings against him or her, in accordance with the provisions of the present Code. 
Peru, Military and Police Criminal Code, 2010, Article 199(3), (5)–(6) and (9).
In the same chapter, the Code also states:
The accused shall have the right to appoint a defence lawyer of his choosing. If the accused does not do this, he or she shall be assigned a legal aid lawyer. If the accused prefers to defend him- or herself, the judge shall permit this only if the accused is a lawyer and would not jeopardize the efficiency of the legal assistance. 
Peru, Military and Police Criminal Code, 2010, Article 212.
Under the heading “Penal enforcement”, the Code states: “A person deprived of their liberty shall be guaranteed to enjoy the right of defence during the judicial process and during the enforcement of the punishment.” 
Peru, Military and Police Criminal Code, 2010, Article 459.
Philippines
The Philippines’ Revised Rules of Criminal Procedure (2000), in the rule dealing with the rights of the accused at trial, states:
In all criminal prosecutions, the accused shall be entitled to the following rights:
(c) To be present and defend in person and by counsel at every stage of the proceedings, from arraignment to promulgation of the judgment. The accused may, however, waive his presence at the trial pursuant to the stipulations set forth in his bail, unless his presence is specifically ordered by the court for purposes of identification. The absence of the accused without justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be present thereat. When an accused under custody escapes, he shall be deemed to have waived his right to be present on all subsequent trial dates until custody over him is regained. Upon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel. 
Philippines, Revised Rules of Criminal Procedure, 2000, Rule 115, Section 1(c).
Philippines
The Philippines’ Rule on Juveniles in Conflict with the Law (2002) states:
Sec. 26. Duty of the Family Court to Protect the Rights of the Juvenile. – In all criminal proceedings in the Family Court, the judge shall ensure the protection of the following rights of the juvenile in conflict with the law:
d) To have legal and other appropriate assistance in the preparation and presentation of his defense;
h) To have speedy and impartial trial, with legal or other appropriate assistance and preferably in the presence of his parents or legal guardian, unless such presence is considered not to be in the best interests of the juvenile taking into account his age or other peculiar circumstances. 
Philippines, Rule on Juveniles in Conflict with the Law, 2002, Section 26 (d) and (h).
Philippines
The Philippines’ Republic Act No. 9344 (2006), the Juvenile Justice and Welfare Act of 2006, provides: “Every child in conflict with the law shall have the following rights, including but not limited to: … (e) the right to prompt access to legal and other appropriate assistance”. 
Philippines, Republic Act No. 9344, 2006, Section 5(e).
Philippines
The Philippines’ Republic Act No. 9372 (2007) states:
Rights of a Person under Custodial Detention. – The moment a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism is apprehended or arrested and detained, he shall forthwith be informed, by the arresting police or law enforcement officers or by the police or law enforcement officers to whose custody the person concerned is brought, of his or her right: (a) to be informed of the nature and cause of his arrest, to remain silent and to have competent and independent counsel preferably of his choice. If the person cannot afford the services of counsel of his or her choice, the police or law enforcement officers concerned shall immediately contact the free legal assistance unit of the Integrated Bar of the Philippines (IBP) or the Public Attorney’s Office (PAO). It shall be the duty of the free legal assistance unit of the IBP or the PAO thus contacted to immediately visit the person(s) detained and provide him or her with legal assistance. These rights cannot be waived except in writing and in the presence of the counsel of choice; (b) informed of the cause or causes of his detention in the presence of his legal counsel; (c) allowed to communicate freely with his legal counsel and to confer with them at any time without restriction. 
Philippines, Republic Act No. 9372, 2007, Section 21.
Poland
Poland’s Constitution (1997) states:
Anyone against whom criminal proceedings have been brought shall have the right to defence at all stages of such proceedings. He may, in particular, choose counsel or avail himself – in accordance with principles specified by statute – of counsel appointed by the court. 
Poland, Constitution, 1997, Article 42(2).
Rwanda
Rwanda’s Constitution (2003) provides:
Article: 137
A state of emergency and a state of siege shall be governed by the law and declared by the President of the Republic, following a decision of the Cabinet.
A declaration of a state of siege or of a state of emergency shall not under any circumstances violate the right to life and physical integrity of the person, the rights accorded to people by law in relation to their status, capacity and nationality; the principle of non-retroactivity of criminal law; the right to legal defence; and freedom of conscience and religion. 
Rwanda, Constitution, 2003, Article 137.
Rwanda
Rwanda’s Organic Law Determining the Organization, Functioning and Jurisdiction of Courts (2004) provides:
Chapter 2: Competence of specialized jurisdictions
Section 1. Jurisdiction based on subject matter or competence of the court
Article: 138
Without prejudice to the provisions of article 139 of this organic law, the Military Tribunal tries in the first instance all offences committed by all Military personnel irrespective of their rank.
It also has powers to try Military personnel accused of the crime of genocide and crimes against humanity committed in Rwanda between October 1st 1990 and December 31st 1994, which place them in the first category irrespective of their ranks.
Section 3. General provisions related to Military Courts
Article: 144
Persons tried by Military Courts shall have the right to legal representation and defence on cases against them at any stage of the trial. 
Rwanda, Organic Law Determining the Organization, Functioning and Jurisdiction of Courts, 2004, Articles 138 and 144.
Rwanda
Rwanda’s Organic Law concerning Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and from Other States (2007) provides:
Article: 13 Guarantee of rights of an accused person
Without prejudice to other rights guaranteed under the laws of Rwanda, including the Constitution of the Republic of Rwanda of June 4, 2003 as amended to date or Laws relating to the Code of Criminal Procedure of Rwanda and the International Covenant on Civil and Political Rights, as ratified by the Decree Law n° 08/75 of February 12, 1975, the accused person in the case transferred by ICTR [International Criminal Tribunal for Rwanda] to Rwanda is guaranteed the following rights:
4° the accused shall be given adequate time and facilities to prepare his defence;
6° the accused shall be entitled to counsel of his choice in any examination. In case he or she has no means to pay, he or she shall be entitled to a legal representation;
Article: 15 Defence Counsel
Without prejudice to the provisions of other laws of Rwanda, Defence Counsel and their support staff shall have the right to enter into Rwanda and move freely within Rwanda to perform their duties. They shall not be subject to search, seizure, arrest or detention in the performance of their legal duties.
The Defence Counsel and their support staff shall, at their request, be provided with appropriate security and protection. 
Rwanda, Organic Law Concerning Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and from Other States, 2007, Articles 13 and 15.
Rwanda
Rwanda’s Organic Law concerning Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and from Other States (2007), as amended in 2009, states:
Without prejudice to other rights guaranteed under the laws of Rwanda, including the Constitution of the Republic of Rwanda … (2003) as amended to date or [l]aws relating to the Code of Criminal Procedure [(2004)] … and the [1966] International Covenant on Civil and Political Rights, as ratified by the Decree Law No. 08/75 of February 12, 1975, the accused person in the case transferred by [the] ICTR to Rwanda shall be guaranteed the following rights:
4º adequate time and facilities to prepare his [or] her defense;
6º entitlement to counsel of his [or] her choice in any examination. In case he [or] she has no means to pay, he [or] she shall be entitled to legal representation;
Without prejudice to the relevant laws on contempt of court and perjury, no person shall be criminally liable for anything said or done in the course of a trial. 
Rwanda, Organic Law concerning Transfer of Cases to the Republic of Rwanda from the International Criminal Tribunal for Rwanda and from Other States, 2007, as amended in 2009, Article 13(4º) and (6º).
Article One: Definitions of terms
For the purpose of this Law, the following terms shall mean as follows:
Article 14: Rights of an accused person
Without prejudice to other rights guaranteed under the laws of Rwanda, including the Constitution of the Republic of Rwanda of 04 June 2003 as amended to date, Laws relating to the Code of Criminal Procedure of Rwanda and the International Covenant on Civil and Political Rights, as ratified by the Decree-Law n° 08/75 of 12 February 1975, the accused person in the case transferred by ICTR [International Criminal Tribunal for Rwanda], by the Mechanism or by other States to Rwanda shall be guaranteed the following rights:
Senegal
Senegal’s Constitution (2001), as amended in 2008, states:
No one may be convicted other than by virtue of a law which entered into force before the act was committed.
However, the provisions of the preceding paragraph shall not hinder the prosecution, trial and conviction of any person for acts or omissions which, at the time when they were committed, were defined as criminal under the rules of international law concerning acts of genocide, crimes against humanity and war crimes.
The right to a defence is absolute in all states and at every stage of the proceedings. 
Senegal, Constitution, 2001, as amended in 2008, Article 9.
Senegal
Senegal’s Law Authorizing Ratification of the 2012 Agreement on the Establishment of the African Extraordinary Chambers (2012) states:
Desiring to fully demonstrate the respect it has consistently shown for its international commitments since independence, Senegal has undertaken to organize the trial for crimes and serious violations of international law committed on the territory of Chad during the period 7 June 1982 to 1 December 1990.
In order to assemble the right conditions for organizing the trial, and taking into account the decision on this matter of the ECOWAS [Economic Community of West African States] Court of Justice on 18 November 2010, the Government of the Republic of Senegal and the African Union signed an Agreement in Dakar on 22 August 2012 concerning the creation of the Extraordinary African Chambers within the Senegalese court system.
This legal instrument should enable our country to tangibly honour our international commitments by facilitating the prosecution of the alleged perpetrators of the aforementioned violations, within the framework of a just and fair trial, taking duly into account the concerns of victims, with strict respect for the right of defence, in accordance with relevant international requirements.
The Government is therefore committed, within the framework of this Agreement, to adopt the necessary laws, regulations and administrative measures for the purpose of putting in place the aforementioned judicial institutions. 
Senegal, Law Authorizing Ratification of the 2012 Agreement on the Establishment of the African Extraordinary Chambers, 2012, preamble, p. 1.
Sierra Leone
Sierra Leone’s Constitution (1991) states:
23. Provision to secure protection of law.
(5) Every person who is charged with a criminal offence –
b. shall be given adequate time and facilities for the preparation of his defence;
c. shall be permitted to defend himself in person or by a legal practitioner of his own choice;
(10) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of any provisions of this section … to the extent that the law in question authorises the taking during a period of public emergency of measures that are reasonably justifiable for the purpose of dealing with the situation that exists before or during that period of public emergency.
29. Public emergency.
(2) The President may issue a Proclamation of a state of public emergency only when—
a. Sierra Leone is at war; [or]
b. Sierra Leone is in imminent danger of invasion or involvement in a state of war; or
c. there is actual breakdown of public order and public safety in the whole of Sierra Leone or any part thereof to such an extent as to require extraordinary measures to restore peace and security; or
d. there is a clear and present danger of an actual breakdown of public order and public safety in the whole of Sierra Leone or any part thereof requiring extraordinary measures to avert the same; or
e. there is an occurrence of imminent danger, or the occurrence of any disaster or natural calamity affecting the community or a section of the community in Sierra Leone; or
f. there is any other public danger which clearly constitutes a threat to the existence of Sierra Leone.
(5) During a period of public emergency, the President may make such regulations and take such measures as appear to him to be necessary or expedient for the purpose of maintaining and securing peace, order and good government in Sierra Leone or any part thereof. 
Sierra Leone, Constitution, 1991, Sections 23(5)(b)–(c) and(10) and 29(2) and (5).
Sierra Leone
Sierra Leone’s Geneva Conventions Act (2012) states:
5. Notice of trial.
(1) A court shall not try a protected prisoner of war or a protected internee unless it is satisfied that the protecting power and the legal representative of the prisoner of war or internee have been given at least twenty-one days notice of the trial by the prosecutor.
7. Legal representative.
(1) The court before which a person is brought for trial for an offence under this Act shall not proceed with the trial unless
(a) that person is represented by a legal practitioner; and
(b) it is proved to the satisfaction of the court that a period of not less than fourteen days has elapsed since instructions to represent the accused person were given to the legal practitioner.
(2) Where the accused is a protected prisoner of war, in the absence of a legal practitioner accepted by the accused as representing him, a legal practitioner instructed for the purpose on behalf of the protecting power shall, without prejudice to the requirements of paragraph (b) of subsection 1[,] be regarded for the purposes of that subsection as representing the accused.
(3) Where the court adjourns a trial because the accused person is not represented, the court shall appoint a legal practitioner to represent the accused. 
Sierra Leone, Geneva Conventions Act, 2012, Sections 5(1) and 7.
South Africa
South Africa’s Military Discipline Supplementary Measures Act (1999) provides:
3. (1) This Act shall, subject to subsection (2), apply to any person subject to the [Military Discipline] Code irrespective whether such person is within or outside the Republic.
(2) For the purposes of the application of this Act and the Code, “person subject to the Code” includes, to the extent and subject to the conditions prescribed in this section and in the Code –
(h) every prisoner of war as contemplated in Articles 4 and 33 of the Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949, or by customary international law, and who is in the power of the Republic and detained by the South African National Defence Force.
Right to legal representation
23. Every person subject to the Code has the right –
(a) to legal representation of own choice at his or her own expense, or to be assigned military defence counsel at State expense when he or she is to appear before or to be tried by a Court of a Military Judge or Senior Military Judge; and
(b) to consult with his or her legal representative or with a military defence counsel prior to making any election to be heard at a disciplinary hearing.
Privilege
38. Every privilege which in law attaches to communications between any practising advocate or attorney and such practitioner’s client, shall apply to communications between any member of the military legal services law staff and such person’s individual or departmental client. 
South Africa, Military Discipline Supplementary Measures Act, 1999, §§ 3, 23 and 38.
Sri Lanka
Sri Lanka’s Emergency Regulations (2005), as amended to 2008, states:
Any person [indicted] before the High Court under these regulations may at any time which shall not extend to more than thirty days before the commencement of such trial, by application in writing to the High Court, request that he be furnished with copies of the statements made by witnesses whom the prosecution intends to call and of the documents to be relied on at the trial, and the Court may direct that copies of all such statements or documents, or of only such statements or documents as the Court in its discretion thinks fit, shall be given to such person. 
Sri Lanka, Emergency Regulations, 2005, as amended to 5 August 2008, Section 62(5).
Sri Lanka
Sri Lanka’s Geneva Conventions Act (2006) states:
(1) The High Court before which —
(a) any person is brought for trial for an offence under section 2 of this Act; or
(b) a protected prisoner of war is brought up for trial for any offence, shall not proceed with the trial unless —
(i) the accused is represented by Counsel;
(ii) it is proved to the satisfaction of the Court that a period of twenty-one days has elapsed since instructions for the representation of the accused at the trial were first given to the Counsel, and if the Court adjourns the trial for the purpose of enabling the requirements of this subsection to be complied with, then, notwithstanding anything to the contrary in any other written law, the Court may authorize the detention of the accused in such custody as it may think fit for the period of the adjournment.
(2) Where the accused is a protected prisoner of war, in the absence of a Counsel accepted by the accused as representing him, Counsel instructed for the purpose on behalf of the protecting power, shall, without prejudice to the requirements of paragraph (ii) of subsection (1) be regarded for the purposes of that subsection as representing the accused.
(3) If the Court adjourns the trial in pursuance of the provisions of subsection (1) on the ground that the accused is not represented by Counsel, the Court shall direct that a Counsel be assigned to watch over the interests of the accused at future proceedings in connection with the offence. In future proceedings, in the absence of Counsel either accepted by the accused as representing him, or instructed as specified in subsection (2), Counsel assigned in terms of the provisions of this subsection shall without prejudice to the requirements of the provisions of paragraph (ii) of subsection (1), be regarded for the purposes of such subsection as representing the accused.
(4) The manner of assigning a Counsel in pursuance of the provisions of subsection (3) and the fees to be paid to such a Counsel shall be as prescribed. 
Sri Lanka, Geneva Conventions Act, 2006, Section 8.
Switzerland
Switzerland’s Criminal Procedure Code (2007), as amended to 2012, which regulates the prosecution and adjudication by the federal and cantonal criminal justice authorities of offences under federal law, including war crimes, states:
Article 107
1. The parties have the right to be heard; in particular, they have the right:
a. to inspect case documents;
b. to participate in procedural acts;
c. to appoint a legal agent;
d. to comment on the case and on the proceedings;
e. to request that further evidence be taken.
2. The criminal justice authorities shall notify parties who are unaware of the law of their rights. 
Switzerland, Criminal Procedure Code, 2007, as amended to 2012, Article 107(1) and (2); see also Articles 127(1), 130, 132 and 158(1)(c).
The Code further states: “At the start of the examination hearing, the person being questioned shall, in a language they can understand: … be informed in full of his rights and obligations.” 
Switzerland, Criminal Procedure Code, 2007, as amended to 2012, Article 143(1)(c).
Syrian Arab Republic
The Syrian Arab Republic’s Military Penal Code (1950) states: “Each defendant referred to military courts for a criminal offence shall have the right to be represented by a counsel.” 
Syrian Arab Republic, Military Penal Code, 1950, Article 70.
United States of America
The US Military Commissions Act (2006), passed by Congress following the Supreme Court’s decision in Hamdan v. Rumsfeld in 2006, amends Title 10 of the United States Code as follows:
§ 948b. Military commissions generally
“(a) PURPOSE.—This chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission.
“…
§ 949a. Rules
“(a) PROCEDURES AND RULES OF EVIDENCE.—Pretrial, trial, and post-trial procedures, including elements and modes of proof, for cases triable by military commission under this chapter may be prescribed by the Secretary of Defense, in consultation with the Attorney General. Such procedures shall, so far as the Secretary considers practicable or consistent with military or intelligence activities, apply the principles of law and the rules of evidence in trial by general courts-martial. Such procedures and rules of evidence may not be contrary to or inconsistent with this chapter.
“(b) RULES FOR MILITARY COMMISSION.—
“(1) Notwithstanding any departures from the law and the rules of evidence in trial by general courts-martial authorized by subsection (a), the procedures and rules of evidence in trials by military commission under this chapter shall include the following:
“(A) The accused shall be permitted to present evidence in his defense, to cross-examine the witnesses who testify against him, and to examine and respond to evidence admitted against him on the issue of guilt or innocence and for sentencing, as provided for by this chapter.
“(B) The accused shall be present at all sessions of the military commission (other than those for deliberations or voting), except when excluded under section 949d of this title.
“(C) The accused shall receive the assistance of counsel as provided for by section 948k.
“(D) The accused shall be permitted to represent himself, as provided for by paragraph (3).
“(2) In establishing procedures and rules of evidence for military commission proceedings, the Secretary of Defense may prescribe the following provisions:
“(A) Evidence shall be admissible if the military judge determines that the evidence would have probative value to a reasonable person.
“(B) Evidence shall not be excluded from trial by military commission on the grounds that the evidence was not seized pursuant to a search warrant or other authorization.
“(C) A statement of the accused that is otherwise admissible shall not be excluded from trial by military commission on grounds of alleged coercion or compulsory self-incrimination so long as the evidence complies with the provisions of section 948r of this title.
“(D) Evidence shall be admitted as authentic so long as—
(i) the military judge of the military commission determines that there is sufficient basis to find that the evidence is what it is claimed to be; and
(ii) the military judge instructs the members that they may consider any issue as to authentication or identification of evidence in determining the weight, if any, to be given to the evidence.
“(E)(i) Except as provided in clause (ii), hearsay evidence not otherwise admissible under the rules of evidence applicable in trial by general courts-martial may be admitted in a trial by military commission if the proponent of the evidence makes known to the adverse party, sufficiently in advance to provide the adverse party with a fair opportunity to meet the evidence, the intention of the proponent to offer the evidence, and the particulars of the evidence (including information on the general circumstances under which the evidence was obtained). The disclosure of evidence under the preceding sentence is subject to the requirements and limitations applicable to the disclosure of classified information in section 949j(c) of this title.
(ii) Hearsay evidence not otherwise admissible under the rules of evidence applicable in trial by general courts-martial shall not be admitted in a trial by military commission if the party opposing the admission of the evidence demonstrates that the evidence is unreliable or lacking in probative value.
“(F) The military judge shall exclude any evidence the probative value of which is substantially outweighed—
(i) by the danger of unfair prejudice, confusion of the issues, or misleading the commission; or
(ii) by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
“(3)(A) The accused in a military commission under this chapter who exercises the right to self-representation under paragraph (1)(D) shall conform his deportment and the conduct of the defense to the rules of evidence, procedure, and decorum applicable to trials by military commission.
“(B) Failure of the accused to conform to the rules described in subparagraph (A) may result in a partial or total revocation by the military judge of the right of self-representation under paragraph (1)(D). In such case, the detailed defense counsel of the accused or an appropriately authorized civilian counsel shall perform the functions necessary for the defense. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, pp. 120 Stat. 2602, 2608 and 2609, §§ 948b(a) and-949a(a) and (b).
The Military Commissions Act further states:
§ 949c. Duties of trial counsel and defense counsel
“ …
“(b) DEFENSE COUNSEL.—
“(1) The accused shall be represented in his defense before a military commission under this chapter as provided in this subsection.
“(2) The accused shall be represented by military counsel detailed under section 948k of this title.
“(3) The accused may be represented by civilian counsel if retained by the accused, but only if such civilian counsel—
“(A) is a United States citizen;
“(B) is admitted to the practice of law in a State, district, or possession of the United States or before a Federal court;
“(C) has not been the subject of any sanction of disciplinary action by any court, bar, or other competent governmental authority for relevant misconduct;
“(D) has been determined to be eligible for access to classified information that is classified at the level Secret or higher; and
“(E) has signed a written agreement to comply with all applicable regulations or instructions for counsel, including any rules of court for conduct during the proceedings.
“(4) Civilian defense counsel shall protect any classified information received during the course of representation of the accused in accordance with all applicable law governing the protection of classified information and may not divulge such information to any person not authorized to receive it.
“(5) If the accused is represented by civilian counsel, detailed military counsel shall act as associate counsel.
“(6) The accused is not entitled to be represented by more than one military counsel. However, the person authorized under regulations prescribed under section 948k of this title to detail counsel, in that person’s sole discretion, may detail additional military counsel to represent the accused.
“(7) Defense counsel may cross-examine each witness for the prosecution who testifies before a military commission under this chapter. 
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, pp. 120 Stat. 2610-2611, §§ 948b(a) and 948q.
United States of America
The US Regulation for Trial by Military Commissions (2007), designed to facilitate the day-to-day functioning of US Military Commissions by implementing the provisions of the Military Commissions Act of 2006 (MCA) and the Manual for Military Commissions (MMC), states:
Every accused shall have a qualified military defense counsel detailed to the accused at government expense during every stage of the proceedings. Should the military judge approve the request of an accused to represent himself, detailed military defense counsel shall serve as standby counsel. Should the accused retain civilian counsel, a military defense counsel shall remain detailed to the accused.
Pursuant to 10 U.S.C. § 949c(b) and R.M.C. 502(d)(1), the accused may retain the services of a civilian attorney of the accused’s own choosing and at no expense to the United States Government. 
United States, Regulation for Trial by Military Commissions, 27 April 2007, § 9-1, p. 36 and § 9-5.a.1, p. 40.
United States of America
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
§ 949a. Rules
“ …
“(b) EXCEPTIONS.—(1) In trials by military commission under this chapter, the Secretary of Defense, in consultation with the Attorney General, may make such exceptions in the applicability of the procedures and rules of evidence otherwise applicable in general courts-martial as may be required by the unique circumstances of the conduct of military and intelligence operations during hostilities or by other practical need consistent with this chapter.
“(2) Notwithstanding any exceptions authorized by paragraph (1), the procedures and rules of evidence in trials by military commission under this chapter shall include, at a minimum, the following rights of the accused:
“(A) To present evidence in the accused’s defense …
“ …
“(C)(i) When none of the charges preferred against the accused are capital, to be represented before a military commission by civilian counsel if provided at no expense to the Government, and by either the defense counsel detailed or the military counsel of the accused’s own selection, if reasonably available.
(ii) When any of the charges preferred against the accused are capital, to be represented before a military commission in accordance with clause (i) and, to the greatest extent practicable, by at least one additional counsel who is learned in applicable law relating to capital cases and who, if necessary, may be a civilian and compensated in accordance with regulations prescribed by the Secretary of Defense. 
United States, Military Commissions Act, 2009, § 949a(b)(2)(A) and (C).
The Act also states:
§ 949c. Duties of trial counsel and defense counsel
“ …
“(b) DEFENSE COUNSEL.—(1) The accused shall be represented in the accused’s defense before a military commission under this chapter as provided in this subsection.
“(2) The accused may be represented by military counsel detailed under section 948k of this title or by military counsel of the accused’s own selection, if reasonably available.
“(3) The accused may be represented by civilian counsel if retained by the accused, provided that such civilian counsel—
“(A) is a United States citizen;
“(B) is admitted to the practice of law in a State, district, or possession of the United States, or before a Federal court;
“(C) has not been the subject of any sanction of disciplinary action by any court, bar, or other competent governmental authority for relevant misconduct;
“(D) has been determined to be eligible for access to information classified at the level Secret or higher; and
“(E) has signed a written agreement to comply with all applicable regulations or instructions for counsel, including any rules of court for conduct during the proceedings.
“(4) If the accused is represented by civilian counsel, military counsel shall act as associate counsel.
“(5) The accused is not entitled to be represented by more than one military counsel. However, the person authorized under regulations prescribed under section 948k of this title to detail counsel, in such person’s sole discretion, may detail additional military counsel to represent the accused.
“(6) Defense counsel may cross-examine each witness for the prosecution who testifies before a military commission under this chapter.
“(7) Civilian defense counsel shall protect any classified information received during the course of representation of the accused in accordance with all applicable law governing the protection of classified information, and may not divulge such information to any person not authorized to receive it. 
United States, Military Commissions Act, 2009, § 949c(b).
The Act further states:
§ 949j. Opportunity to obtain witnesses and other evidence
“(a) IN GENERAL.—(1) Defense counsel in a military commission under this chapter shall have a reasonable opportunity to obtain witnesses and other evidence as provided in regulations prescribed by the Secretary of Defense. The opportunity to obtain witnesses and evidence shall be comparable to the opportunity available to a criminal defendant in a court of the United States under article III of the Constitution. 
United States, Military Commissions Act, 2009, § 949j(a)(1).
Uruguay
Uruguay’s Law on Cooperation with the ICC (2006) states:
48.3. Within 48 hours of the arrest or, if the person is already deprived of his or her liberty, of properly resolving the previous matter, the Supreme Court of Justice, with the notification of the Prosecutor, carries out a hearing in which:
A) It notifies the detainee of the designation of the counsel of his or her own choosing subject to the warning that he or she would otherwise have legal assistance assigned to him or her. 
Uruguay, Law on Cooperation with the ICC, 2006, Article 48.3.A; see also Article 49.2.A.
Venezuela
Venezuela’s Law on the State of Emergency (2001), which includes situations of internal and international armed conflict, states:
In accordance with Articles 339 of the Constitution of the Bolivarian Republic of Venezuela, Article 4(2) of the [1966] International Covenant on Civil and Political Rights and Article 27(2) of the [1969] American Convention on Human Rights, the guarantee of the [following] rights must not be restricted:
4. The [right to] equality before the law. 
Venezuela, Law on the State of Emergency, 2001, Article 7(4).
Venezuela
Venezuela’s Law on the Protection of Children and Adolescents (2007) states: “An adolescent who is under investigation or detained must be informed … of the right … to request the immediate presence of … his or her legal counsel.” 
Venezuela, Law on the Protection of Children and Adolescents, 2007, Article 541.
The Law also states: “Every adolescent has the right to be heard during the investigation, trial or execution of a sentence.” 
Venezuela, Law on the Protection of Children and Adolescents, 2007, Article 542.
The Law further states: “The defence is inviolable from the beginning of the investigation until the imposed penalty has been fully served. If an adolescent lacks a private defence counsel, he or she shall be granted the assistance of a specialized public defence counsel.” 
Venezuela, Law on the Protection of Children and Adolescents, 2007, Article 544.
Venezuela
Venezuela’s Penal Procedure Code (2009), which is applicable to the prosecution of war crimes, states: “The right to a defence is inviolable at every stage of the proceedings. The judges must guarantee it without preferences or inequalities.” 
Venezuela, Penal Procedure Code, 2009, Article 12; see also Article 125(3).
The Code further states: “The indicted [person] shall have the right to elect a defence lawyer whom he or she trusts. If he or she does not do so, the judge will designate a public defender starting with the first stage of the proceedings or … before the [person] makes a statement.” 
Venezuela, Penal Procedure Code, 2009, Article 137; see also Article 10.
Venezuela
Venezuela’s Penal Procedure Code (2012), which is applicable to the prosecution of war crimes, states: “The right to a defence is inviolable at every stage of the proceedings. The judges must guarantee it without preferences or inequalities.” 
Venezuela, Penal Procedure Code, 2012, Article 12; see also Article 127(3).
The Code further states: “The indicted [person] shall have the right to elect a defence lawyer whom he or she trusts. If he or she does not do so, the judge will designate a public defender starting with the first stage of the proceedings or … before the [person] makes a statement.” 
Venezuela, Penal Procedure Code, 2012, Article 139; see also Articles 10 and 515 and Explanatory Notes, pp. 3 and 5.
The Code also states: “The indicted [person] will have the following rights: … To be heard during the trial whenever he or she requests so.” 
Venezuela, Penal Procedure Code, 2012, Article 127(12); see also Article 312.
The Code further states:
Article 132. …
The indicted [person] will have the right to … testify as many times as he or she wishes, as long as his or her statement is relevant and does not appear to be only a means to delay the trial.
In any case, the indicted [person]’s statement will be null and void if not made in the presence of his or her defence.
Article 133.
Before the indicted [person] makes his or her statement …
... it will be … explained to him or her that the statement is a means of defence and, therefore, he or she has the right to explain anything that might detract from the accusations against him or her, and request any measures he or she considers necessary. 
Venezuela, Penal Procedure Code, 2012, Articles 132–133.
Viet Nam
Viet Nam’s Judicature Law (2001) states: “Any individual has the right to defend themselves in court.” 
Viet Nam, Judicature Law, 2001, § 9.
Viet Nam
Viet Nam’s Ordinance on Organization of the Military Courts (2002) states: “The military courts [shall] ensure the right to defence of defendants.” 
Viet Nam, Ordinance on Organization of the Military Courts, 2002, § 12.
Viet Nam
Viet Nam’s Criminal Procedure Code (2003) states: “[A]ccused and defendants shall have the right to defend themselves or ask other persons to defend them.” 
Viet Nam, Criminal Procedure Code, 2003, § 11; see also § 50.2(f).
Zimbabwe
Zimbabwe’s Constitution (1979), as amended to 2009, states:
THE DECLARATION OF RIGHTS
18 Provisions to secure protection of law
(3) Every person who is charged with a criminal offence–
(c) shall be given adequate time and facilities for the preparation of his defence.
26 Interpretation and other savings
(7) No measures taken in relation to a person who is a member of a disciplined force of a country with which Zimbabwe is at war or with which a state of hostilities exists and no law, to the extent that it authorises the taking of such measures, shall be held to be in contravention of the Declaration of Rights. 
Zimbabwe, Constitution, 1979, as amended to 2009, Sections 18(3)(c) and 26(7).
Zimbabwe
Zimbabwe’s Constitution (2013) states:
Chapter 4 – Declaration of Rights
69. Right to a fair hearing
(1) Every person accused of an offence has the right to a fair and public trial within a reasonable time before an independent and impartial court.
(4) Every person has a right, at their own expense, to choose and be represented by a legal practitioner before any court, tribunal or forum.
70. Rights of accused persons
(1) Any person accused of an offence has the following rights –
(c) to be given adequate time and facilities to prepare a defence;
(d) to choose a legal practitioner and, at their own expense, to be represented by the legal practitioner;
(e) to be represented by a legal practitioner assigned by the State and at State expense, if substantial injustice would otherwise result;
(f) to be informed promptly of the rights conferred by paragraphs (d) and (e);
(2) Where this section requires information to be given to a person –
(a) the information must be given in a language the person understands; and
(b) if the person cannot read or write. any document embodying the information must be explained in such a way that the person understands it.
86. Limitation of rights and freedoms
(2) The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors, including –
(b) the purpose of the limitation, in particular whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest;
(3) No law may limit the following rights enshrined in this Chapter, and no person may violate them –
(e) the right to a fair trial;
87. Limitations during public emergency
(1) In addition to the limitations permitted by section 86, the fundamental rights and freedoms set out in this Chapter may be further limited by a written law providing for measures to deal with situations arising during a period of public emergency, but only to the extent permitted by this section and the Second Schedule.
(4) No law that provides for a declaration of a state of emergency, and no legislative or other measure taken in consequence of such a declaration may –
(a) indemnify, or permit or authorise an indemnity for, the State or any institution or agency of the government at any level, or any other person, in respect of any unlawful act; or
(b) limit any of the rights referred to in section 86(3), or authorise or permit any of those rights to be violated. 
Zimbabwe, Constitution, 2013, Sections 69(1) and (4), 70(1)(c)–(f) and (2), 86(2)(b) and (3)(e) and 87(1) and (4).
[The 1973 International Crimes (Tribunals) Act] provide[s] that the accused … shall be furnished with a copy of the formal charge[s and of] … the documents lodged with [such] charge[s] at a reasonable time so that he may [prepare his] defence … The whole [purpose] of framing [the] charge[s] in a criminal case is to enable the accused … to [focus] his attention on … the substantive charge[s] which he will have to meet and to be ready … before the evidence is given. An accused … is entitled to know with accuracy and certainty the exact nature of the charge[s] brought against him. Failure to state … any substantial fact and particular[] of the offence[s] alleged … will be defective because in such event [the principles of natural justice] might be … violat[ed]. 
Bangladesh, Supreme Court, Molla case, Judgment, 17 September 2013, p. 210. Held by majority of 3:2.
Bosnia and Herzegovina
In 2007, in the Stanković case, the Appellate Panel of the Court of Bosnia and Herzegovina, in response to a Defence claim that a lower court’s denial of a request for self-representation violated the accused’s right to a defence, stated:
Article 45 (1) of the BiH CPC [Criminal Procedure Code of Bosnia and Herzegovina] explicitly regulates, among other things, that the accused must have a defense attorney if he is charged with a criminal offense for which a penalty of long-term imprisonment may be pronounced, which is the case here. The Article also states that the right concerned is not a right which can be waived voluntarily but that it is the duty of the court, according to the law, to provide the accused adequate professional assistance in prescribed cases, therefore, equality of arms in respect to the Prosecutor's office as the other party to the proceedings. The essence of the mandatory defense in cases in which the court may pronounce a long-term imprisonment is the fact that these are the gravest criminal offenses which include numerous legal matters the resolution of which requires the involvement of persons with specific legal expertise. The position of the accused, in the concrete case, is even more difficult due to the fact that he is in custody, which also represents one of the reasons, aimed at adequate preparation of defense, to hire professionals who will be able to collect evidence in favor of the accused without disturbance. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Stanković case, Judgment, 28 March 2007, p. 11.
Canada
In the Khadr case before the Canadian Federal Court of Appeal in 2007, the appellant, a Canadian citizen detained at Guantanamo Bay, challenged a decision by the Canadian Federal Court. The Federal Court of Appeal summarized the facts of the case as follows:
[4] The appellant, a Canadian citizen, was apprehended by the American military in July 2002. He is presently detained in U.S. Naval Station, Guantánamo Bay, Cuba.
[5] In November 2005, the appellant was charged with: conspiracy to commit offences triable by Military Commission; murder by an unprivileged belligerent; attempted murder by an unprivileged belligerent; and aiding the enemy. As of February 2, 2007, the charges against him read: murder in violation of the law of war; attempted murder in violation of the law of war; conspiracy; providing material support for terrorism; and spying.
[6] The charges relate to events which are alleged to have occurred in Afghanistan and elsewhere when the appellant was 15 years of age and younger. They carry a maximum penalty of life imprisonment. The prosecution is not seeking the imposition of the death penalty.
[7] The appellant currently awaits prosecution by a Military Commission established by order of the Secretary of Defence of the United States. No date for trial has yet been set.
[8] Prior to the laying of charges, Canadian officials from the Canadian Security Intelligence Service (CSIS) and the Department of Foreign Affairs and International Trade (DFAIT), with the consent of U.S. authorities, attended at Guantánamo Bay and interviewed the appellant in the absence of his counsel. These visits were allegedly not welfare visits or covert consular visits but were purely information-gathering visits with a focus on intelligence/law enforcement. The topics discussed with the appellant included matters which were the subject of the charges. Canadian agents took a primary role in these interviews, were acting independently and were not under instructions of U.S. authorities. Summaries of information collected were passed on to the RCMP and to U.S. authorities. 
Canada, Federal Court of Appeal, Khadr case, Reasons for Judgment and Judgment, 10 May 2007, §§ 4–8.
In its reasons for judgment, the Federal Court of Appeal stated:
[2] The appellant, Omar Ahmed Khadr, is appealing the decision of von Finckenstein J. of the Federal Court (Khadr v. Canada (Minister of Justice), 2006 FC 509) which dismissed his application for judicial review. The appellant sought a remedy under subsection 24(1) of the [Canadian] Charter [of Rights and Freedoms] for a violation of his right under section 7 of the Charter to a full answer and defence to criminal charges. He sought an order in the nature of mandamus directing the respondents to make full and complete disclosure of all the documents, records and other materials in the possession of all departments of the Crown in Right of Canada which might be relevant to the charges laid against him by the government of the United States.
[3] The four respondents, the Minister of Justice and Attorney General of Canada, the Minister of Foreign Affairs, the Director of the Canadian Security Intelligence Service, and the Commissioner of the Royal Canadian Mounted Police (collectively referred to herein as the Crown), are officials of the government of Canada who are in possession of voluminous documentary materials which are allegedly relevant to the charges against the appellant. 
Canada, Federal Court of Appeal, Khadr case, Reasons for Judgment and Judgment, 10 May 2007, §§ 2-3.
In its judgment, the Federal Court of Appeal stated:
Duty to disclose
[24] Since the landmark decision of the Supreme Court of Canada in R. v. Stinchcombe, it is trite law that the Crown has a continuing obligation to disclose all relevant information to an accused, whether inculpatory or exculpatory, subject to the exercise of the Crown’s discretion to refuse to disclose information that is privileged or plainly irrelevant (at pages 339–340 and 343–344). The obligation to disclose is triggered by a request by or on behalf of the accused (page 343).
[26] A failure to disclose relevant information impedes an accused’s ability to make full answer and defence and creates the risk of an innocent person being convicted and imprisoned. As one of the principles of fundamental justice, the right to make full answer and defence has been entrenched in the section 7 [of the Canadian Charter of Rights and Freedoms] protection of the right to life, liberty and security of the person (Stinchcombe at paragraph 17).
Does the [Canadian] Charter [of Rights and Freedoms] have an extraterritorial reach in the circumstances of this case?
The right to make full answer and defence is a common law right that has been incorporated in s. 7 of the Charter as one of the principles of fundamental justice:
The right to make full answer and defence is one of the pillars of criminal justice on which we heavily depend to ensure that the innocent are not convicted. Recent events have demonstrated that the erosion of this right due to non-disclosure was an important factor in the conviction and the incarceration of an innocent person. Stinchcombe, supra, at p. 336.]
[34] In these circumstances, the participation of Canadian officials in gathering evidence against the appellant at the pre-charge level raises, in my view, a justiciable Charter issue (Kwok, at paragraph 106; Purdy at paragraph 22 (B.C.C.A.)). They took an active role in interviewing the appellant and in transmitting summaries of the information collected to U.S. authorities. In doing so, they assisted U.S. authorities in conducting the investigation against the appellant and in preparing a case against him. Canada’s participation may have made it more likely that criminal charges would be laid against the appellant thereby increasing the likelihood that he would be deprived of his right to life, liberty and security of the person. I believe that in these circumstances the Charter applies. There is a sufficient causal connection between the Canadian government’s participation in the foreign investigation and the potential deprivation of life, liberty and security of the person which the appellant now faces. I am satisfied that the applications Judge erred in concluding that a sufficient causal connection did not exist.
CONCLUSION
[43] I am satisfied that the Charter applies in the circumstances of this case and that section 7 of the Charter is engaged. It may be that the respondents’ refusal to disclose relevant information goes as far as violating the appellant’s constitutional right to full answer and defence. This issue can only be determined by a review of the redacted and other relevant material and a balancing of the competing interests at stake with a view to reconciling them under the Charter.
[44] …
An order is issued directing that:
(a) the respondents, the Minister of Justice and Attorney General of Canada, the Minister of Foreign Affairs, the Director of the Canadian Security Intelligence Service and the Commissioner of the Royal Canadian Mounted Police, produce before the Federal Court unredacted copies of all documents, records and other materials in their possession which might be relevant to the charges against the appellant and which are therefore necessary for the purpose of allowing him to raise full answer and defence to the charge. 
Canada, Federal Court of Appeal, Khadr case, Reasons for Judgment and Judgment, 10 May 2007, §§ 24, 26, 34 and 43–44.
The judgment by the Federal Court of Appeal was appealed by the Crown. In 2008, the Supreme Court of Canada dismissed the appeal but varied the order of the Federal Court of Appeal as it relates to the scope of disclosure. The Supreme Court held:
[1] … This appeal raises the issue of the relationship between Canada’s domestic and international human rights commitments. Omar Khadr currently faces prosecution on murder and other charges before a U.S. Military Commission in Guantanamo Bay, Cuba. Mr. Khadr asks for an order under s. 7 of the Canadian Charter of Rights and Freedoms that the appellants be required to disclose to him all documents relevant to these charges in the possession of the Canadian Crown, including interviews conducted by Canadian officials with him in 2003 at Guantanamo Bay. The Minister of Justice opposes the request, arguing that the Charter does not apply outside Canada and hence did not govern the actions of Canadian officials at Guantanamo Bay.
[2] We conclude that Mr. Khadr is entitled to disclosure from the appellants of the records of the interviews and of information given to U.S. authorities as a direct consequence of conducting the interviews. The principles of international law and comity of nations, which normally require that Canadian officials operating abroad comply with local law, do not extend to participation in processes that violate Canada’s international human rights obligations.
[3] The process in place at the time Canadian officials interviewed Mr. Khadr and passed the fruits of the interviews on to U.S. officials has been found by the United States Supreme Court to violate U.S. domestic law and international human rights obligations to which Canada is party. In light of these decisions by the United States Supreme Court that the process at Guantanamo Bay did not comply with either U.S. domestic or international law, the comity concerns that would normally justify deference to foreign law do not apply in this case. Consequently, the Charter applies, and Canada is under a s. 7 duty of disclosure. The content of this duty is defined by the nature of Canada’s participation in the process that violated Canada’s international human rights obligations. In the present circumstances, this duty requires Canada to disclose to Mr. Khadr records of the interviews conducted by Canadian officials with him, and information given to U.S. authorities as a direct consequence of conducting the interviews, subject to claims for privilege and public interest immunity.
[4] We thus uphold the Federal Court of Appeal’s conclusion that Mr. Khadr is entitled to a remedy under s. 7 of the Charter.
[37] In reaching its conclusions on disclosure, the Federal Court of Appeal held that the Stinchcombe disclosure regime should apply, and consequently held that the scope of disclosure extended to all materials in the Crown’s possession which might be relevant to the charges against the appellant, subject to ss. 38 ff. of the Canada Evidence Act. Our holding is not based on applying Stinchcombe directly to these facts. Rather, as described above, the s. 7 duty of disclosure to Mr. Khadr is triggered on the facts of this case by Canadian officials’ giving U.S. authorities access to interviews conducted at Guantanamo Bay with Mr. Khadr. As a result, the disclosure order we make is different in scope than the order of the Federal Court of Appeal. The appellants must disclose (i) all records in any form of the interviews conducted by Canadian officials with Mr. Khadr, and (ii) records of any information given to U.S. authorities as a direct consequence of Canada’s having interviewed him. This disclosure is subject to the balancing of national security and other considerations as required by ss. 38 ff. of the Canada Evidence Act. 
Canada, Supreme Court, Khadr case, Judgment, 23 May 2008, §§ 1–4 and 37.
Canada
In 2008, in the Ribic case, Canada’s Court of Appeal for Ontario dismissed an appeal of a Canadian national who had been convicted of hostage-taking. Justice Cronk, who gave the leading judgment, summarized the facts of the case as follows:
[1] In 1995, Bosnia was in the throes of a bitter and prolonged civil war between Bosnian Serbs and Bosnian Muslims. The war had a complicated and violent history. Throughout, a United Nations (UN) peacekeeping force, assisted by the North Atlantic Treaty Organization (NATO), was deployed in Bosnia.
[2] The appellant, Nicholas Nikola Ribic, is a Canadian citizen of Yugoslavian origin. At some point around 1995, he travelled to Bosnia and became involved with the Serbian war effort. On May 26, 1995, Ribic and several companions took three unarmed UN military observers hostage at gunpoint in the Bosnian town of Pale and used them as human shields by shackling them to Serbian ammunition bunkers that were the target of an ongoing NATO air strike. During the initial hostage-taking, Ribic repeatedly threatened to kill the hostages if the NATO bombing did not stop. The hostages were detained for almost three and a half weeks, until their negotiated release on June 18, 1995. …
[3] On February 17, 1999, Ribic was charged with four counts of hostage-taking in relation to two of the UN observers – one of whom is a Canadian citizen – under s. 279.1 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (the Code). … Canada’s jurisdiction over the hostage-taking, assumed under s. 7(3.1) of the Code, was conceded by the defence.
[4] Ribic’s first trial began in October 2002. It ended on January 20, 2003 with the declaration of a mistrial. On June 12, 2005, following a second trial before a judge and jury, Ribic was convicted of two counts of hostage-taking and, on September 14, 2005, was sentenced to three years imprisonment.
[5] Ribic appeals his convictions. … Ribic [inter alia … contends that the trial judge erred by refusing to stay the prosecution on the grounds that Ribic’s rights under ss. 7 and 11(b) of the Charter of Rights and Freedoms [(Charter)] to a fair trial [and] to make full answer and defence to the Crown’s case … had been infringed. For the reasons that follow, I would dismiss the appeal. 
Canada, Court of Appeal for Ontario, Ribic case, Judgment, 24 November 2008, §§ 1–5, per Cronk J.A.
The Court held:
[108] … An accused’s rights to a fair trial and to make full answer and defence are principles of fundamental justice protected by s. 7 of the Charter. They encompass the right to defend against “all of the state’s efforts to achieve a conviction” (R. v. Rose, [1998] 3 S.C.R. 262, at para. 103) and to have .the opportunity adequately to state [one’s] case. (R. v. Seaboyer; R. v. Gayme, [1991] 2 S.C.R. 577, at para. 32).
[109] However, these fundamental rights are not absolute. The jurisprudence of the Supreme Court of Canada recognizes that national security considerations can justify limitations on the extent and form of disclosure of confidential information to affected individuals. 
Canada, Court of Appeal for Ontario, Ribic case, Judgment, 24 November 2008, §§ 108–109, per Cronk J.A.
Canada
In 2013, in the Mungwarere case, Canada’s Ontario Superior Court of Justice acquitted Mr. Mungwarere of charges of genocide and crimes against humanity in Rwanda in 1994. The Court stated:
21. The trial started on 28 May 2012. The [C]rown closed its case on 23 July 2012. I had already declared that I would have granted a five-week suspension [of the trial] before the defence’s submission of evidence. Taking into account the intrinsic difficulties of such proceeding, it was fair to grant such period in order for the defence to be ready. The attorneys and their investigators had to return again to Rwanda to coordinate the submission of evidence …
22. Twice the accused requested an extension of the suspension. I agreed to such requests. 
Canada, Ontario Superior Court of Justice, Mungwarere case, Reasons for Judgment, 5 July 2013, §§ 21–22.
Chile
In its judgment in the Pedro Poblete Córdova case in 1998, Chile’s Supreme Court stated that “at all times, the accused persons shall be entitled to fair trial guarantees and a free defence, which shall be no less than what is provided by Article 105 et seq. of the Geneva Convention relating to the Treatment of Prisoners of War of 12 August 1949”. 
Chile, Supreme Court, Pedro Poblete Córdova case, Judgment, 9 September 1998, § 9.
Chile
In its judgment in the Contreras Sepúlveda case in 2004, Chile’s Supreme Court stated that “at all times, the accused persons shall be entitled to fair trial guarantees and a free defence, which shall be no less than what is provided by Article 105 et seq. of the Geneva Convention relating to the Treatment of Prisoners of War of 12 August 1949”. 
Chile, Supreme Court, Second Chamber, Contreras Sepúlveda case, Judgment, 17 November 2004, § 34.
Chile
In its judgment in the Víctor Raúl Pinto case in 2007, Chile’s Supreme Court stated that “at all times, the accused shall be entitled to fair trial guarantees and a free defence, which shall be no less than what is provided by Article 105 et seq. of the Geneva Convention relating to the Treatment of Prisoners of War of 12 August 1949”. 
Chile, Supreme Court, Criminal Law Chamber, Víctor Raúl Pinto case, Decision on Annulment, 13 March 2007, § 16.
Colombia
In 2005, in the Constitutional Case No. C-203/05, the Plenary Chamber of Colombia’s Constitutional Court stated:
Criminal prosecutions of minors must strictly comply with the minimum constitutional and international norms found in (i) Article 44 of the Constitution [and] (ii) the Beijing Rules or “the United Nations Standard Minimum Rules for the Administration of Juvenile Justice” … They all include standards that must be complied with as part of the Colombian domestic legal framework, as expressly stated in Article 44 of the Constitution according to which children are entitled to the totality of rights found in international instruments. 
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment, 8 March 2005, § 4.6.2; see also § 4.2.5.
The Court also found:
Rule 7.1 [of the “Beijing Rules”] provides a list of minimum procedural guarantees to be respected in all cases involving the prosecution of minors for violating criminal law: “Basic procedural safeguards such as … the right to counsel … shall be guaranteed at all stages of the proceedings”. 
Colombia, Constitutional Court, Constitutional Case No. C-203/05, Judgment, 8 March 2005, § 4.2.5.1.7
Netherlands
In its judgment in the Hesammudin case in 2005, the Hague District Court of the Netherlands stated:
The right to fair trial, as laid down in Article 6 ECHR [1950 European Convention on Human Rights], implies that in criminal cases each party is given reasonable opportunity to state its view without falling substantially behind. Both parties must be given the possibility to bring forward items of evidence to support their own point of view and they must be able to learn about and to take a position concerning everything presented as items of evidence, in order to be able to influence the judgment of the Court. 
Netherlands, Hague District Court, Hesammudin case, Judgment, 14 October 2005.
Netherlands
In its judgment in the Van Anraat case in 2005, the Hague District Court of the Netherlands stated:
In general, with respect to the “equality of arms” principle the court has the following considerations. The equality between prosecution and defense basically has a procedural character and implies that counsel for the defense should not find itself in an unreasonably unequal position as opposed to the prosecuting authorities. Equality of arms is also protected in international administration of criminal justice (ICTY, Tadic, case number IT-94-1-A, sentence of appeal proceedings, 15 July 1999, paragraph 52). Just like the Tadic case, the court recognizes the problems facing the defense in criminal cases of such complexity and international magnitude. However it should be considered that in comparison with Dutch criminal procedures, international criminal procedures are of a totally different nature.
Just like the legal practice of common law, international criminal lawsuits focus on the collection of evidence by the suit litigants, largely or exclusively in support of their own point of view. The fact that in Dutch criminal proceedings the litigants really occupy different positions in respect of each other and that this positioning by the prosecution as well as by the judicial authorities should lead to the gathering of evidence, also taking into consideration the interest of the defense, undeniably has its consequences for the contents and the meaning of the “equality of arms” principle. In as far as the defense asserts that the efforts of the prosecuting and judicial authorities have not met their own investigation requirements, the Code of Criminal Procedure allows for sufficient possibilities for additional inquiries (see Article 36a C.C.P.). Moreover the court has demonstrated the willingness, also from a practical point of view, to satisfy reasonable requests made by the defense, like the assignment of more than one lawyer and the allowance of an amount of money to the defense lawyers in order to seek specialist advice.
During the court hearing counsel pleaded a violation of the equality of arms principle, because the defense allegedly has not been able to access certain sources or source collections in the same way as the public prosecution service. The defense has not been able to exert an influence on the selection of documents obtained from Human Rights Watch and the United Nations and therefore counsel has not been able to establish whether disculpatory sources were excluded from the case file.
The court refuses this plea, arguing that is has not become evident that those documents could be of any interest to the decision to be taken by the court.
Finally the defense pleaded a violation of the equality of arms principle, because counsel was allegedly not able to carry out its own investigations abroad, including countries in the Middle East, because the defense counsel assists the accused on an assignment basis and consequently does not have sufficient financial means to order/carry out such an inquiry. Furthermore the defense asserts that it has not been able to carry out its own fact finding nor any investigation into the finding of possible disculpatory witnesses.
The court cannot see why the defense should not have been able to carry out independent investigations. After all the defense itself can make trips to that end and can also request the examining magistrate and the public prosecutor to institute a similar inquiry. Moreover the defense had the opportunity to hire its own expert. For lack of funds, the defense could have applied for an advance payment pursuant to the Tariffs in Criminal Proceedings Act. Furthermore the defense was provided with an advance payment to find its own expertise. 
Netherlands, Hague District Court, Van Anraat case, Judgment, 23 December 2005, § 5.4.
Peru
In 2003, in the Marcelino Tineo Silva and Others case, Peru’s Constitutional Court found:
119. The Constitutional Court has stated that one of the most relevant constitutional procedural rights is the right of defence, recognised under Article 139(14) of the Constitution. “By virtue of this right it is guaranteed that all persons shall not be left defenceless in the legal determination of their rights and obligations, irrespective of the nature of the proceedings (civil, commercial, criminal, labour, etc.).” (Case Tineo Cabrera, Docket No. 1230-2002-AA/TC).
120. … One of the components [of the right of defence] is the right to communicate personally with a lawyer of his or her choice and to be assisted by him or her. As stated in the pertinent provision of the [Peruvian] Constitution, “(…) not to be deprived of the right of defence at any stage in the process (…)” and the “right to communicate personally with a lawyer of one’s own choosing and to be assisted by him or her from the moment the person is summoned or detained by any authority” shall be guaranteed.
121. …[T]he right not to be deprived of a defence must be understood in a criminal law setting to include the police investigation stage from its beginning. The right to be represented by a freely chosen lawyer cannot be reduced in scope by any law or by any norm with the quality of a law, and thus the right to be assisted by a lawyer cannot be interpreted as not covering the moment before giving the first statement to the police. 
Peru, Constitutional Court, Marcelino Tineo Silva and Others case, Judgment, 3 January 2003, §§ 119–121.
Philippines
In its judgment in the Cuizon case in 1996, the Supreme Court of the Philippines stated:
It is clear that appellant Lee was effectively denied his right to counsel, for although he was provided with one, he could not understand and communicate with him concerning his defense such that, among other things, no memorandum was filed on his behalf; further, he was denied his right to have compulsory process to guarantee the availability of witnesses and the production of evidence on his behalf, including the services of a qualified and competent interpreter to enable him to present his testimony. In sum, he was denied due process. For this reason, we hold that the case as against Lee must be remanded to the court of origin for a re-trial. 
Philippines, Supreme Court, Cuizon case, Judgment, 18 April 1996.
Philippines
In the Binamira case before the Supreme Court of the Philippines in 1997, in which the appellant appealed the decision of a lower court that had convicted him of the crime of robbery with homicide, the court reversed and set aside the lower court’s decision and ordered his immediate release from confinement. In doing so, the court noted:
In the present case, Appellant Binamira was not adequately informed of his constitutional right to engage a counsel of his own choice, much less afforded an opportunity to exercise such right …
Moreover, the extrajudicial confession itself shows that, in the course of the custodial investigation, Appellant Binamira was not fully apprised of his constitutional rights. While he was perfunctorily informed of his right to be represented by counsel, it was not explained to him that he may choose that counsel. More important, he was not given the chance to actually retain such counsel of his choice. 
Philippines, Supreme Court, Binamira case, Judgment, 14 August 1997.
[emphasis in original]
Philippines
In its judgment in the Liwanag case in 2001, the Supreme Court of the Philippines stated:
Accused-appellant’s citation of People v. Holgado and Powell v. Alabama, insofar as the right to be heard by counsel is concerned, is misleading. Both cases only defined the “right to be heard by counsel” as “the right to be assisted by counsel.” It cannot be inferred from these cases that “the right to be heard by counsel” presupposes “the right to an intelligent counsel.” The requirement is not for counsel to be “intelligent”, but to be effective.
Jurisprudence defined the meaning of “effective counsel” only in the light of Article III, Section 12 (1) of the Constitution, which refers to the right of persons under custodial investigation. In People v. Lucero, the rationale for this constitutional right was elucidated by this Court, to wit:
The 1987 Constitution requires that a person under investigation for the commission of a crime should be provided with counsel. We have constitutionalized the right to counsel because of our hostility against the use of duress and other undue influence in extracting confessions from a suspect. Force and fraud tarnish confessions and render them inadmissible. In providing for said right, this Court has held in the same case that when the Constitution requires the right to counsel, it did not mean any kind of counsel but effective and vigilant counsel. The requirements of effectiveness and vigilance of counsel during that stage before arraignment were for the purposes of guarding against the use of duress and other undue influence in extracting confessions which may taint them and render them inadmissible.
On the other hand, Article III, Section 14 (2) of the 1987 Constitution requires that the accused shall enjoy the right to be heard by himself and counsel. The reason for the latter provision was explained in People v. Holgado, thus:
One of the great principles of justice guaranteed by our Constitution is that “no person shall be held to answer for a criminal offense without due process of law”, and that all accused “shall enjoy the right to be heard by himself and counsel.” In criminal cases there can be no fair hearing unless the accused be given an opportunity to be heard by counsel. The right to be heard would be of little avail if it does not include the right to be heard by counsel. Even the most intelligent or educated may have no skill in the science of the law, particularly in the rules of procedure, and, without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence. And this can happen more easily to persons who are ignorant or uneducated. It is for this reason that the right to be assisted by counsel is deemed so important that it has become a constitutional right and it is so implemented that under our rules of procedure it is not enough for the Court to apprise an accused of his right to have an attorney, it is not enough to ask him whether he desires the aid of an attorney, but it is essential that the court should assign one de oficio for him if he so desires and he is poor or grant him a reasonable time to procure an attorney of his own.
In essence, the right to be heard by counsel simply refers to the right to be assisted by counsel for the purpose of ensuring that an accused is not denied the collateral right to due process, a fundamental right which cannot be waived by an accused. The underlying basis for due process is the concept of fairness, without which there can be no justice. In other words, there can be no due process accorded an accused if he is not given the right to be heard through counsel or assisted by counsel. It follows that in order to be heard, and therefore be accorded due process, the assistance given by counsel must be “effective” as implied in the rationale of Article III, Section 14 (2). In this sense, this Court subscribes to American jurisprudence when it held that “[t]he right of an accused to counsel is beyond question a fundamental right. Without counsel, the right to a fair trial itself would be of little consequence, for it is through counsel that the accused secures his other rights. In other words, the right to counsel is the right to effective assistance of counsel.” 
Philippines, Supreme Court, Liwanag case, Judgment, 15 August 2001.
[emphasis in original]
Philippines
In the Alejano case before the Supreme Court of the Philippines in 2005, in which the petitioners (six junior officer detainees charged with coup détat, together with two of their defence lawyers) sought to nullify a Court of Appeals decision to dismiss a petition for habeas corpus, the court dismissed the petition. In response to allegations by the detainees that access to their lawyers was being constrained at their place of detention, the court noted:
In our jurisdiction, the last paragraph of Section 4(b) of RA 7438 [Republic Act No. 7438 – An Act Defining Certain Rights of the Person Arrested, Detained or Under Custodial Investigation] provides the standard to make regulations in detention centers allowable: “such reasonable measures as may be necessary to secure the detainees safety and prevent his escape.” In the present case, the visiting hours accorded to the lawyers of the detainees are reasonably connected to the legitimate purpose of securing the safety and preventing the escape of all detainees.
While petitioners may not visit the detainees any time they want, the fact that the detainees still have face-to-face meetings with their lawyers on a daily basis clearly shows that there is no impairment of detainees’ right to counsel. Petitioners as counsels could visit their clients between 8:00 a.m. and 5:00 p.m. with a lunch break at 12:00 p.m. The visiting hours are regular business hours, the same hours when lawyers normally entertain clients in their law offices. Clearly, the visiting hours pass the standard of reasonableness. Moreover, in urgent cases, petitioners could always seek permission from the ISAFP [Intelligence Service of the Armed Forces of the Philippines] officials to confer with their clients beyond the visiting hours.
In the present case, we cannot infer punishment from the separation of the detainees from their visitors by iron bars, which is merely a limitation on contact visits. The iron bars separating the detainees from their visitors prevent direct physical contact but still allow the detainees to have visual, verbal, non-verbal and limited physical contact with their visitors. The arrangement is not unduly restrictive. In fact, it is not even a strict non-contact visitation regulation like in Block v. Rutherford [468 U.S. 576 (1984)]. The limitation on the detainees’ physical contacts with visitors is a reasonable, non-punitive response to valid security concerns. 
Philippines, Supreme Court, Alejano case, Judgment, 25 August 2005.
[emphasis in original]
Philippines
In its judgment in the Callangan case in 2006, the Supreme Court of the Philippines stated:
In criminal cases, the right of the accused to be assisted by counsel is immutable. Otherwise, there will be a grave denial of due process. The right to counsel proceeds from the fundamental principle of due process which basically means that a person must be heard before being condemned.
In People v. Ferrer, the essence of the right to counsel was enunciated:
The right to counsel means that the accused is amply accorded legal assistance extended by a counsel who commits himself to the cause for the defense and acts accordingly. The right assumes an active involvement by the lawyer in the proceedings, particularly at the trial of the case, his bearing constantly in mind of the basic rights of the accused, his being well-versed on the case, and his knowing the fundamental procedures, essential laws and existing jurisprudence. The right of an accused to counsel finds substance in the performance by the lawyer of his sworn duty of fidelity to his client. Tersely put, it means an efficient and truly decisive legal assistance and not a simple perfunctory representation. 
Philippines, Supreme Court, Callangan case, Judgment, 27 June 2006.
[emphasis in original]
Spain
In 2009, in the Gaza case, the Criminal Chamber of Spain’s National High Court was called upon to decide the appeal of the Prosecution Service in a case concerning a bombing in Gaza in 2002 by the Israeli Air Force. The Court referred to the facts of the case as falling under “offences against protected persons and objects in the event of armed conflict” in the Penal Code (1995). 
Spain, National High Court, Gaza case, Judgment, 9 June 2009, Fundamentos Jurídicos, Tercero, p. 4.
In 2010, Spain’s Supreme Court dismissed an appeal against the judgment of the National High Court and held:
B) The right to a … process with all the [judicial] guarantees – the infringement of which is denounced [in this appeal] – has a series of concrete manifestations: the right … of defence and to the assistance of a counsel, … [the right] to equality of arms, and to use the pertinent means of proof for the defence …
C) … The appeal proceedings [of the National High Court], which also allowed and led to the present appeal, in no way detract from the procedural guarantees or result in the lack of a proper defence. 
Spain, Supreme Court, Gaza case, Judgment, 4 March 2010, Section II, Primero, (B)–(C), p. 2.
With regard to the issue concerning the infringement of the right to due process, including an effective judicial review, the court stated:
B) The fundamental right invoked has a complex content which includes the right to access judges and tribunals, the right to obtain a decision founded upon rights and its enforcement, [and] the right that the proceedings are carried out in accordance with the law … [I]t does not include … the right to obtain a resolution that is in line with [a person’s own] intentions …
According to the STC 82/2001 [Constitutional Court judgment] “it may only be considered that the contested judicial proceedings violate the right to due process when the reasoning it is founded upon is of such a degree of arbitrariness, unreasonableness or mistake that … it would be obvious for any observer that the determination of the [proceedings] lacks foundation and motivation” …
C) This is not the case here; it must be said that there does not appear to be an infringement of the right to due process, as the appellant has received a ruling founded upon [the examination] of the substance of the issue raised, regardless of the [appellant’s] legitimate disagreement with the decision.
It is clear that the order by which the National High Court terminated the proceedings offered a founded and motivated decision that in no way infringed upon the fundamental right invoked by the appellants. 
Spain, Supreme Court, Gaza case, Judgment, 4 March 2010, Section I, Segundo, (B)–(C), pp. 2–3.
The Court accepted the proceeding of the National High Court and held that “it would not uphold the appeal formulated by the appellants”. 
Spain, Supreme Court, Gaza case, Judgment, 4 March 2010, Section III, p. 3.
(emphasis in original)
Spain
In 2010, in the Couso case, the Criminal Chamber of Spain’s Supreme Court was called upon to decide an appeal in the case concerning the killing of a Spanish journalist in Baghdad on 8 April 2003 by troops of the United States of America. In deciding upon one of the issues raised in the appeal on whether there was an infringement of the right to due process, including the right to a proper defence, the court held:
D) The substantive issue on the classification of the acts and … the individual responsibility of the alleged perpetrators can only be decided upon by the court through the appraisal of evidence and of the intentions of the accused, resulting in a sentence that can then be the object in certain cases of an appeal …
E) Even admitting for purely dialectic purposes that doubts could exist … concerning the rational indications of an offence found by the examining magistrate, it would still be probable that an offence was committed, which would thus have to be determined in an oral trial.
F) The [1949] IV Geneva Convention and its [1977] Additional Protocol I, incorporated to our legal system through Article 96(1) CE [1978 Spanish Constitution], which establishes the protection of persons defined as “civilians” (in particular journalists) and the obligation of aut dedere aut iudicare [has] been manifestly unfulfilled … by the US …
2. … According to STC 82/2001 [Constitutional Court judgement] “it may only be considered that the contested judicial proceedings violate the right to due process when the reasoning it is founded upon is of such a degree of arbitrariness, unreasonableness or mistake that … it would be obvious for any observer that the determination of the [proceedings] lacks foundation and motivation”.
The right to due process from the perspective of the plaintiffs … means that there is a right to access judges and tribunals to obtain justice …
… [T]he judgement of this Second Chamber of the Supreme Court of 19 May 2004 specifies that the fundamental right to due process does not include the right to obtain the conviction of the accused … [R]ather, as we have repeatedly recalled, this right has a complex content that includes the right to access judges and tribunals, the right to obtain a decision founded in law and its enforcement, and the right that the proceedings are carried out in accordance with the law … [I]t does not include … the right to obtain a resolution in line with [a person's own] intentions …
… STS 927/2005 [Supreme Court judgement] of 5 July 2005 held that the necessary reasoning for proceedings of this nature requires setting out the facts, [and] that they are considered proven …
3. In the facts under consideration, … the appealed order [presently under review] … anticipates a judgment of acquittal when the judicial proceedings have not yet been exhausted …
In addition, as alleged [by the appellants], the appealed order seems to place an emphasis, in order to terminate the proceedings, on the second section of Article 611(1) of the PC [Penal Code (1995)] … when it is clear that on the last occasion the examining magistrate also based his proceedings on the first section … [T]he latter should be evaluated by the Court, as was expressed in the dissenting opinion, according to the principles of International Humanitarian and customary law, and not in an anticipated manner. As a result the appealed order lacks the necessary reasoning, as it ignores the substantial grounds [raised] in the second indictment order …
In addition, the appealed order … reaches a conclusion concerning the termination of the proceedings in accordance with Article 637(2) LECr [Law on Criminal Prosecution of 1881] (as the facts did not constitute an offence) solely based on the allegation that there was a mistake by the acting [US] armed forces. 
Spain, Supreme Court, Couso case, Judgment, 13 July 2010, Section II(II), Segundo, §§ 1–3, pp. 7–8; see also Tercero, §§ 1–2, p. 9 and Quinto, §§ 1–2, pp. 10–11.
[emphasis in original]
On another issue raised in the appeal concerning the violation of the right to the proof of evidence, the court held:
2. This Chamber has stated that the right to use means of proof has constitutional status in our law under Article 24 CE [1978 Spanish Constitution] but it is not an absolute right. …
… As a result an appeal could be upheld when the [assessment of] evidence, or the termination of the proceedings due to the inability to [assess evidence], has been unjustifiably denied, and when … [this] could have had a decisive influence on the outcome of the proceedings …
3. … In the case under consideration, the plaintiffs … were interested: a) in receiving a declaration from the legal representative in Spain of Al Jazeera and Abu Dhabi television; b) in that … a reconstruction of facts take place in Baghdad in order to determine the optical devices of the combat vehicle that attacked [the hotel]; c) in the testimony of Sergeant Elsa (on a television program she said that the Palestine Hotel had been designated as a military objective by the chain of command of the US army despite knowledge that members of the press were staying there) … These proceedings are still of interest for the establishment of the facts; in addition “others could be carried out” as noted by the order of 16 July 2009 … for example taking the declarations of the three members of the armed forces allegedly responsible for the shooting.
Consequently, the appeal is upheld. 
Spain, Supreme Court, Couso case, Judgment, 13 July 2010, Section II(II), Cuarto, §§ 2–3, pp. 9–10.
[emphasis in original]
The Court upheld the appeal against the order of 23 October 2009 by the Third Section of the Criminal Chamber of the Spanish National Court, which declared the termination of the proceedings, and held that “the proceedings must continue, and the outstanding preparatory enquiries must be undertaken, as well as any others arising from the clarification of the events under investigation.” 
Spain, Supreme Court, Couso case, Judgment, 13 July 2010, Section III, pp. 20–21.
Uganda
In the Kotido Field Court Martial case in 2008, which related to a Field Court Martial held in 2002 that had, within the space of three hours, resulted in the indictment, conviction and then execution of two soldiers for the crime of murder, Uganda’s Constitutional Court unanimously ruled that accused persons in Field Court Martials were entitled, as of right, to appeal through the Military Courts system up to the Supreme Court. In the lead judgment, Twinomujuni J stated:
ADEQUATE TIME AND FACILITIES TO PREPARE A DEFENCE
We have no information as to when (if at all) the accused persons were told of the offence they were going to be indicted on. All we know is that the indictment was read to them in court at 12.50 pm on 25th March 2003. Three hours later, the trial was over and they were dead. It seems to me that they were not accorded any time at all to prepare for their defence. This is contrary even to the provisions of the UPDF [Uganda Peoples Defence Forces] Act and the regulations governing trial procedure in military courts. I have no doubt in my mind that the Field Court martial in the Kotido trial grossly contravened article 28(3)(c) of the Constitution [“be given adequate time and facilities for the preparation of his or her defence”].
THE RIGHT TO LEGAL REPRESENTATION
Article 28(3) (e) of the Constitution categorically states that where an accused person is facing trial on a charge which carries a sentence of death or life imprisonment, he is entitled to legal representation at the expense of the State. This requirement is mandatory. A look at the proceedings of the Court Martial will reveal that the accused was not even informed that he had a right to legal representation. When the prosecution witnesses completed giving evidence, the accused would be given opportunity to cross-examine but in most cases, they had nothing to ask and yet the case had complex issues. 
Uganda, Constitutional Court, Kotido Field Court Martial case, Judgment, 5 February 2008, pp. 24–25.
Twinomujuni J further stated:
It is not imaginable, that the accused persons who were not given even a few minutes to reflect on the indictment or the evidence against them, would be able to ask of the state witnesses any intelligent question in cross examination. No wonder then that they totally failed to cross-examine the witnesses.
This gross contravention of article 28(3) (e) of the Constitution cannot be cured by the fact that there was a military legal officer present throughout the trial. … I would hold that the Kotido trial was conducted in total contravention of the provisions of article 28(3) (e) of the Constitution of Uganda. 
Uganda, Constitutional Court, Kotido Field Court Martial case, Judgment, 5 February 2008, pp. 27–28.
United States of America
In its judgment in the Ward case in 1942, the US Supreme Court stated:
This Court has set aside convictions based upon confessions extorted from ignorant persons … who have been unlawfully held incommunicado without advice of friends or counsel, or who have been taken at night to lonely and isolated places for questioning. Any one of these grounds would be sufficient cause for reversal. 
United States, Supreme Court, Ward case, Judgment, 1 June 1942.
Azerbaijan
In 2007, in its third periodic report to the Human Rights Committee, Azerbaijan stated:
In order to ensure the correct application of the rules set out in the Code of Criminal Procedure, persons conducting inquiries and investigations are required, from the moment that suspects are taken into custody, to explain to them their rights, including the right to defence counsel. A defence lawyer must be made available to detainees from the moment that they are taken into custody. 
Azerbaijan, Third periodic report to the Human Rights Committee, 10 December 2007, UN Doc. CCPR/C/AZE/3, submitted 4 October 2007, § 130.
Chile
In 2006, in its fifth periodic report to the Human Rights Committee, Chile stated: “According to the new Code [of Criminal Procedure], accused persons have the following rights: … to be assisted by a lawyer from the start of the investigation”. 
Chile, Fifth periodic report to the Human Rights Committee, 5 July 2006, UN Doc. CCPR/C/CHL/5, submitted 7 February 2006, § 149.
(footnote in original omitted)
Chile also stated:
Right to qualified and free defence: persons charged with offences have the right to assistance from a lawyer from the moment the investigation is initiated. That right notwithstanding, if they prefer to defend themselves in person, the court shall only authorize such action if it does not compromise the effectiveness of the defence, failing which, the court shall appoint qualified counsel, without prejudice to the right of the accused to submit views and claims themselves. If the defendants do not themselves designate lawyers, public criminal defence lawyers are assigned to them. This service is always free and, in exceptional cases, may be extended for part or all of the defence of persons standing trial who have their own means. 
Chile, Fifth periodic report to the Human Rights Committee, 5 July 2006, UN Doc. CCPR/C/CHL/5, submitted 7 February 2006, § 149; see also § 211.
[footnote omitted]
Croatia
In 2007, in its second periodic report to the Human Rights Committee, Croatia stated:
In the case of suspicion or accusation for a criminal offence, the suspected, accused or prosecuted person shall have the right:
- To have adequate time and opportunity to prepare his or her defence
- To a defence counsel and free communication with him or her, and to be informed of this right
- To defend himself or herself in person or with the assistance of a defence counsel of his or her own choice, and if he or she lacks resources to engage a counsel, to have a free counsel under the terms specified by law. 
Croatia, Second periodic report to the Human Rights Committee, 2 December 2008, UN Doc. CCPR/C/HRV/2, submitted 28 November 2007, § 206.
Democratic Republic of the Congo
In 2008, a training manual by the Prosecutor at the Military High Court for magistrates on techniques for investigating sexual crimes, including war crimes, was adopted as part of the Programme on Investigating Sexual Crimes of the Democratic Republic of the Congo. When explaining the participation of victims and witnesses in the proceedings, the training manual states:
Certain victims and witnesses may collaborate with justice under the protection of anonymity, although the resort to such measure is obviously a serious violation of the rights of defence. There is thus a dilemma opposing, on the one hand, victims and witnesses, who claim their right to respect and protection; and on the other hand, the accused, whose right to a fair trial implies the possibility of examining the complete file of the proceedings …
Nevertheless, the protection of the identity of victims and witnesses is imposed by international tribunals in exceptional circumstances … [C]ertain proceedings before these tribunals take place when the conflict is ongoing or the situation in the field is far from stable. These factors increase the risk of reprisals and thus require the use of exceptional mechanisms of protection. 
Democratic Republic of the Congo, Training manual by the Prosecutor at the Military High Court for magistrates on techniques for investigating sexual crimes, adopted as part of the Programme on Investigating Sexual Crimes of the Democratic Republic of the Congo, Military Justice seminar, 2008, pp. 62–63.
Hungary
In 2004, in its second periodic report to the Committee on the Rights of the Child, Hungary stated:
[T]he actual presence of a defence lawyer, the right to a defence, and the fundamental constitutional rights … must be guaranteed to all accused in practice at every stage of the procedure … Guaranteeing a defence does not only mean the obligation of the appointed lawyer to be present at the trial; it also includes the obligation to keep continuous contact with the accused, which is crucial for an effective defence. 
Hungary, Second periodic report to the Committee on the Rights of the Child, 24 May 2005, UN Doc. CRC/C/70/Add.25, submitted 17 February 2004, § 536; see also § 508.
Hungary
In 2004, in its fourth periodic report to the Committee against Torture, Hungary stated:
According to the International Covenant on Civil and Political Rights everyone has full and equal rights to have adequate time and opportunity to provide for the preparation of his defence and to contact the defence lawyer of his choice. The term “adequate contact” in the Covenant comprises the conditions assuring effective and timely defence, which substantively includes free and uncontrolled contact with the defence lawyer, including the direct exchange of documents. The absence of this hinders timely and effective defence, thereby jeopardizing the right to defence. 
Hungary, Fourth periodic report to the Committee against Torture, 14 February 2005, UN Doc. CAT/C/55/Add.10, submitted 16 June 2004, § 101.
Jordan
The Report on the Practice of Jordan states that Article 75 of the 1977 Additional Protocol I embodies customary law. 
Report on the Practice of Jordan, 1997,Chapter 5.
Mexico
In 2004, in its fourth periodic report to the Committee against Torture, Mexico stated:
The accused’s right to a free defence is guaranteed by the Constitution. To give effect to this right, the Federal Advocates’ Unit was replaced by the Public Defenders’ Institute in 1998. The primary aim of the Institute, an auxiliary body of the Council of the Federal Judiciary that investigates, trains and informs members and aspiring members of the federal judiciary, is to guarantee the professionalism of public defenders and legal advisers so as to ensure that the services provided by public defenders are based on the principles of integrity, honesty and professionalism. 
Mexico, Fourth periodic report of Mexico to the Committee against Torture, 28 February 2005, UN Doc. CRC/C/55/Add.12, submitted 20 December 2004, § 217.
Mexico
In 2006, during the consideration of the third periodic report of Mexico by the Committee on the Rights of the Child, a representative of Mexico stated: “The rights to a defence and a fair hearing and all rights related to due process … [are] respected. The minor … [has] the right to be heard.” 
Mexico, Statement by the delegation of Mexico before the Committee on the Rights of the Child during the consideration of the third periodic report of Mexico, 1 June 2006, UN Doc. CRC/C/SR.1141, § 18.
Nepal
In 2004, in a declaration of commitment on the implementation of human rights and international humanitarian law, the Prime Minister of Nepal stated:
Right to unhindered legal defence shall be honoured and protected … The accused shall have the right to present himself/herself during the hearing of the case. He/she shall have the right to defend by himself/herself or by the legal practitioner of his or her own choosing. He/she shall have the right to seek counsel from such practitioner openly and secretly. 
Nepal, Declaration of commitment on the implementation of human rights and international humanitarian law, 26 March 2004, § 5.
Oman
In 2005, in its second periodic report to the Committee on the Rights of the Child, Oman stated:
The accused shall have the right to appoint a person capable of defending him during trial. The law shall set forth the circumstances in which a lawyer for the accused must be present. Persons who are financially incapacitated shall be guaranteed means of recourse to justice and of defending their rights. 
Oman, Second periodic report to the Committee on the Rights of the Child, 8 May 2006, UN Doc. CRC/C/OMN/2, submitted 28 April 2005, § 23.
Poland
In 2004, in its fifth periodic report to the Human Rights Committee, Poland stated:
Pursuant to article 42 paragraph 2 of the Constitution, anyone against whom criminal proceedings have been brought shall have the right to defence at all stages of such proceedings. He may, in particular, choose counsel or avail himself – in accordance with principles specified by a law – of counsel appointed by the court. 
Poland, Fifth periodic report to the Human Rights Committee, 26 January 2004, UN Doc. CCPR/C/POL/2004/5, submitted 13 January 2004, § 267.
Code of Criminal Procedure
A new law relating to the code of criminal procedure has also been enacted. It is Law n° 13/200[4] of 17 May 2004 that, unlike the law of 1963 February that was aimed at the same purpose, contains specific procedure provisions for children, namely:
Somalia
In 2011, in its report to the Human Rights Council, Somalia stated:
Somalia has not ratified AP II [1977 Additional Protocol II] and it is therefore not directly applicable to Somalia as a matter of treaty law. The Government is aware that many provisions of AP II represent customary IHL rules and therefore apply to the situation in Somalia. Such provisions include … Article 6 providing the rule on penal prosecutions due to the fact that these norms are reflected in Common Article 3 of the [1949] Geneva Conventions. 
Somalia, Report to the Human Rights Council, 11 April 2011, UN Doc. A/HRC/WG.6/11/SOM/1, § 75.
Switzerland
In 2007, in its third periodic report to the Human Rights Committee, Switzerland stated:
The rights of defence deriving from the right to a hearing require, in accordance with the principle of fair treatment, that the record of the case should specify how the evidence was obtained. Thus the Federal Court ruled in a decision of 13 November 2002 that verbatim records transcribing into German tapped telephone conversations conducted in a foreign language could be used only if the file showed who had made the recordings and by what means. 
Switzerland, Third periodic report to the Human Rights Committee, 17 December 2007, UN Doc. CCPR/C/CHE/3, submitted 12 October 2007, § 233.
Switzerland also stated:
In Decision ATF 129 I 281 et seq., the Federal Court found that the right accorded to all persons charged with a criminal offence by article 2 of the seventh Additional Protocol to the European Convention on Human Rights and by article 14, paragraph 5, of the International Covenant [on Civil and Political Rights] to have his conviction reviewed by a higher court would be unacceptably voided of content if the necessary defence was limited to the proceedings in first instance and if a convicted person lacking the necessary resources had to take charge of the appeal proceedings himself, when representation by a lawyer would be essential for the effective exercise of his rights of defence. Where necessary defence is concerned, a defendant – or convicted person – whose poverty is recognized has, in principle, an unconditional right to free assistance, even in appeal proceedings which he initiates himself. 
Switzerland, Third periodic report to the Human Rights Committee, 17 December 2007, UN Doc. CCPR/C/CHE/3, submitted 12 October 2007, § 236.
[footnote omitted]
Switzerland
In 2010, in its Report on IHL and Current Armed Conflicts, Switzerland’s Federal Council stated:
3.4 [Increasing use] of anti-guerrilla tactics
Apart from the direct fight against insurgents, international humanitarian law also addresses other anti-guerrilla tactics. … If members of militias or opposition groups fall into the hands of the government they benefit from the protection of art. 75 of [the 1977] Additional Protocol I as well as that of art. 3 common to the [1949] Geneva Conventions. 
Switzerland, Federal Council, Report on IHL and Current Armed Conflicts, 17 September 2010, Section 3.4, p. 15.
[footnotes in original omitted]
Syrian Arab Republic
In 2004, in its third periodic report to the Human Rights Committee, the Syrian Arab Republic stated:
Observance by military courts of guarantees provided in the Covenant:
(b) The right to defence before military courts is established by the law. A defendant or an accused person before military justice enjoys the same rights and guarantees enjoyed by their civilian counterparts. A defendant or an accused person has the right to choose a lawyer to defend him before the military magistrate, the single-judge military court or other military courts, and if he does not choose a lawyer the president of the court shall appoint a lawyer. In all cases a defendant has the right not to answer questions by a military magistrate except in the presence of a lawyer (articles 70 and 72–75 of the Military Penal and Criminal Procedure Code. 
Syrian Arab Republic, Third periodic report to the Human Rights Committee, 19 October 2004, UN Doc. CCPR/C/SYR/2004/3, submitted 5 July 2004, § 212(b).
Thailand
In 2004, in its initial report to the Human Rights Committee, Thailand stated:
Section 55 of the Act on Organization of Military Court (1956) provides that the military court shall provide legal aid to the accused in the military court and there is a department which is responsible for providing an advocate upon order of the military court. 
Thailand, Initial report of Thailand to the Human Rights Committee, UN Doc. CCPR/C/THA/2004/1, 2 August 2004, § 399.
United Kingdom of Great Britain and Northern Ireland
In 2003, during a debate in the House of Commons, the UK Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, stated:
On 3 July, the United States designated six detainees, including two British nationals held at Guantanamo bay, as eligible for trial under a military commission. We have strong reservations about the military commission. We have raised, and will continue to raise them energetically with the US. The Foreign Secretary spoke to the US Secretary of State, Colin Powell, about that over the weekend and will speak to him again in the next few days.
We understand that the Americans will nominate the defence lawyers in some way. We are seeking further information about that, too. The right hon. and learned Gentleman will forgive me if I do not go into much detail, but many aspects are a cause of concern to us and we intend to pursue them all.
One concern that we are pursuing with the Americans is that in our view, all the evidence concerning the case against these people must clearly be made available to them, so that they are in a position to rebut it.
We understand that the detainee does have the right to choose his own defence lawyer – if he meets the security requirements laid down by the Americans. However, it is clear that this matter will have to be checked out.
I think that the hon. Gentleman’s question concerns whether the Geneva convention should apply to the detainees, and I have already made it clear that, in our view, it should. 
United Kingdom, House of Lords, Statement by the Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, Hansard, 7 July 2003, Vol. 408, Debates, cols. 751–759.
United Kingdom of Great Britain and Northern Ireland
In 2003, during a debate in the House of Lords, the UK Minister of State, Foreign and Commonwealth Office, stated:
My Lords, from the outset, the Government have urged the United States Government to resolve the position of the detainees. The Government are currently making vigorous representations to the United States Government about the future of the UK detainees at Guantanamo Bay. These representations cover a range of issues, including the need for any trials of UK detainees to be fair and to accord with international law, as well as the possible return of the detainees to the United Kingdom of Great Britain and Northern Ireland. My right honourable friend the Prime Minister will raise this matter with the President of the United States in the course of his imminent visit to Washington.
My Lords, as I understand it, the United States proposes that individuals should be given an advocate chosen from a panel of military lawyers. If an individual does not want to go along with such an arrangement, there may be an opportunity for him to go to an alternative lawyer, but that lawyer will still be drawn from a panel of lawyers who have been vetted by the United States for security purposes. I understand that those are the proposals currently under discussion. 
United Kingdom, House of Lords, Statement by the Minister of State, Foreign and Commonwealth Office, Hansard, 17 July 2003, Vol. 651, Debates, cols. 965–968.
United Kingdom of Great Britain and Northern Ireland
In 2003, in a reply to a written question in the House of Lords, the UK Minister of State, Foreign and Commonwealth Office, wrote:
However, in addition, the Attorney-General, who has represented the Government in discussions with the US Administration about the military commissions, issued a statement on 22 July, following the first round of talks. This included a reference to the question of legal representation. Part of the statement says “… the US has assured us that … Begg and Abbasi will be able to be represented by an appropriately qualified US civilian lawyer of their own choosing, subject to security clearance. A UK lawyer will be able to serve as a consultant on the defence team. Each detainee will be able to decide to what extent he wished the appointed military counsel to participate in the preparation of his case.”
However, in addition, the Attorney-General, who has represented the Government in discussions with the US Administration about the military commissions, issued a statement on 22 July, following the first round of talks. This included a reference to the question of communications between defendants and their lawyers. Part of the statement says “… the US has assured us that … exceptionally, conversations between Begg or Abbasi and his defence counsel would not be monitored or reviewed by US authorities.” 
United Kingdom, House of Lords, Written answer by the Minister of State, Foreign and Commonwealth Office, Hansard, 3 November 2003, Vol. 654, Written Answers, cols. WA67–WA68.
United Kingdom of Great Britain and Northern Ireland
In 2003, in its fourth periodic report to the Committee against Torture, the United Kingdom stated:
Article 11 (Monitoring of procedures to prevent torture or other forms of ill-treatment)
Access to legal advice
101. In all parts of the United Kingdom, anyone subject to questioning by the police or attending the police station voluntarily has the right to consult a legal adviser and, as a general rule, to have a legal adviser present during interview. These rights are set out in the Code of Practice for the detention, treatment and questioning of persons by police officers (Code C) issued under the PACE [Police and Criminal Evidence] Act 1984 in England and Wales, in parallel Codes in Northern Ireland, and under the Criminal Procedure (Scotland) Act 1995. Under exceptional circumstances access to legal advice may be delayed, but powers to do this are only available under strict criteria.
105. The Terrorism Act 2000 also allows for access to a solicitor to be delayed for up to 48 hours from the time of detention in defined circumstances that apply throughout the United Kingdom. However, the power to delay access is used very rarely: the Government is not aware that it has been used at all in any part of the United Kingdom in recent years.
Right to silence
England, Wales and Northern Ireland
109. In response to the judgement of the European Court of Human Rights in John Murray v. United Kingdom, the Government introduced provisions prohibiting the drawing of inferences from silence where no prior access to legal advice has been granted. These were contained in the Youth Justice and Criminal Evidence Act 1999, and replicated for Northern Ireland at article 36 of the Criminal Evidence (Northern Ireland) Order 1999. Commencement of the provisions in England and Wales and in Northern Ireland will follow necessary revision of the PACE Codes. However, in both jurisdictions administrative arrangements have been in place for some time to ensure compliance with the judgement.
Scotland
110. In Scotland, regardless of whether a legal adviser is present, no inferences can be drawn as to the credibility of the suspect’s evidence on any matter about which he declined to say anything while being interviewed, cautioned, or charged by the police.
Access to legal advice
England and Wales
263. As stated in the third report, in all parts of the United Kingdom, the rules governing prisoners’ contacts with their legal advisers are set out in prison rules and other internal instructions to Governors. The rules governing legal privilege apply both to convicted prisoners and prisoners on remand and are designed to safeguard their rights when contacting their legal representatives. All visits by legal advisers take place in the sight, but out of hearing, of a prison officer.
264. The Access to Justice Act 1999 brought in significant changes to the old Legal Aid Scheme. The Legal Aid Board was replaced by the Legal Services Commission (LSC), which administers the provision of publicly funded legal services. The LSC has issued new guidance on funding which is intended to make sure that cases which serve the public interest (especially those against public bodies) and those which serve the interests of justice, are funded, and frivolous actions are not. In addition, only legal firms with a contract with the LSC are able to undertake publicly funded work. The contracted firms are audited to ensure that they provide a quality service and can provide the level of professional skills and knowledge required. 
United Kingdom, Fourth periodic report to the Committee against Torture, UN Doc. CAT/C/67/Add.2, 27 May 2004, submitted 6 November 2003, §§ 101, 105, 109–110 and 263–264.
United Kingdom of Great Britain and Northern Ireland
In 2004, during a debate in the House of Commons, the UK Foreign Secretary stated regarding the trial of UK citizens detained in Guantanamo Bay:
Speaking specifically in respect of our detainees, we have said that the provision of legal advice is a necessary part of any fair trial system – it is almost a sine qua non. The detainees there have not received legal advice, even though one or two of them are in the trial system. That is the background to the recent appeal to the Supreme Court, and it has been one aspect of our disagreements with the United States Government about the fairness of the trial process offered. We have repeatedly said that British detainees should either be tried as soon as possible according to principles that are recognised to be fair, or be returned to the UK. That remains our position and it has been the subject of considerable discussion between ourselves and the United States ever since Guantanamo bay received British detainees. 
United Kingdom, House of Commons, Statement by the Foreign Secretary, Hansard, 8 July 2004, Vol. 423, Debates, col. 1096.
United States of America
Country reports on human rights practices issued by the US Department of State have often noted that defendants must be given an opportunity to present their defence. More specifically, in 1986, the Department of State expressed concern that several indicted political prisoners in Ethiopia had been denied the right to present a defence, to call witnesses or to search for further evidence. 
United States, Department of State, Country reports on human rights practices for 1986, Ethiopia, United States Government Printing Office, 1987, p. 144; see also Country reports on human rights practices for 1993, Nicaragua, United States Government Printing Office, 1994, p. 637; Country reports on human rights practices for 1996, Cambodia, United States Government Printing Office, 1997, p. 611.
United States of America
According to the Report on US Practice, “Articles 4, 5 and 6 [of the 1977 Additional Protocol II] reflect general US policy on treatment of persons in the power of an adverse party in armed conflicts governed by common Article 3” of the 1949 Geneva Conventions. The report also notes: “It is the opinio juris of the US that persons detained in connection with an internal armed conflict are entitled to humane treatment as specified in Articles 4, 5 and 6 [of the 1977 Additional Protocol II].” 
Report on US Practice, 1997, Chapter 5.3.
United States of America
In August 2003, the US State Department issued a written response to an opinion issued by the United Nations Commission on Human Rights (UNCHR), dated 8 May 2003, that had referred to a UNCHR Working Group Report on Arbitrary Detention, dated 8 January 2003, which was critical of US policy regarding detainees held at the Guantanamo Bay Naval Base in Cuba. In disagreeing with the UNCHR reports, and noting that the competence of the Working Group did not extend to the laws and customs of war, the US response stated:
[U]nder the laws and customs of war, detained enemy combatants have no right of access to counsel or the courts to challenge their detention. Should a detainee be charged with a criminal offense, he would have the right to counsel and applicable fundamental procedural safeguards. 
United States, State Department, Response to UNCHR Opinion No. 5/2003 of 8 May 2003 and the Communication of 8 January 2003 of the Working Group on Arbitrary Detention, August 2003.
United States of America
In March 2010, in a speech given at the Annual Meeting of the American Society of International Law, the US State Department’s Legal Adviser stated:
As the President noted in his National Archives speech, lawfully constituted military commissions are also appropriate venues for trying persons for violations of the laws of war. In 2009, with significant input from this Administration, the Military Commissions Act was amended, with important changes to address the defects in the previous Military Commissions Act of 2006 … . The 2009 legislative reforms … require the government to disclose more potentially exculpatory information, restrict hearsay evidence … . 
United States, “The Obama Administration and International Law”, Speech given by the Legal Adviser of the US Department of State at the Annual Meeting of the American Society of International Law, Washington DC, 25 March 2010.
Uruguay
In 2003, in its second periodic report to the Committee on the Rights of the Child, Uruguay stated that “article 74 of the Children and Adolescents Code establishes a range of guarantees of due process such as: … the right to a defence”. 
Uruguay, Second periodic report to the Committee on the Rights of the Child, 13 October 2006, UN Doc. CRC/C/URY/2, submitted 18 December 2003, § 78.
UN General Assembly
In a resolution adopted in 2003 on human rights in the administration of justice, the UN General Assembly:
Appeals to Governments to include in their national development plans the administration of justice as an integral part of the development process and to allocate adequate resources for the provision of legal-aid services with a view to promoting and protecting human rights, and invites the international community to respond favourably to requests for financial and technical assistance for the enhancement and strengthening of the administration of justice. 
UN General Assembly, Res. 58/183, 22 December 2003, § 6, adopted without a vote.
UN General Assembly
In a resolution adopted in 2005 on torture and other cruel, inhuman or degrading treatment or punishment, the UN General Assembly:
Recalls its resolution 43/173 of 9 December 1988 on the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, and in this context stresses that ensuring that any individual arrested or detained is promptly brought before a judge or other independent judicial officer in person and permitting prompt and regular medical care and legal counsel as well as visits by family members and independent monitoring mechanisms can be effective measures for the prevention of torture and other cruel, inhuman or degrading treatment and punishment. 
UN General Assembly, Res. 60/148, 16 December 2005, § 10, adopted without a vote.
UN General Assembly
In a resolution adopted in 2005 on human rights in the administration of justice, the UN General Assembly:
Appeals to Governments to include in their national development plans the administration of justice as an integral part of the development process and to allocate adequate resources for the provision of legal-aid services with a view to promoting and protecting human rights, and invites the international community to respond favourably to requests for financial and technical assistance for the enhancement and strengthening of the administration of justice. 
UN General Assembly, Res. 60/159, 16 December 2005, § 6, adopted without a vote.
UN General Assembly
In a resolution adopted in 2005 on the follow-up to the eleventh UN congress on crime prevention and criminal justice, the UN General Assembly endorsed the Bangkok Declaration on Synergies and Responses: Strategic Alliances in Crime Prevention and Criminal Justice, annexed to the resolution, in which UN member States declared:
We call upon Member States to take steps, in accordance with their domestic laws, to promote access to justice, to consider the provision of legal aid to those who need it and to enable the effective assertion of their rights in the criminal justice system. 
UN General Assembly, Res. 60/177, 16 December 2005, annex: preamble and § 18, adopted without a vote.
UN General Assembly
In a resolution adopted in 2006 on torture and other cruel, inhuman or degrading treatment or punishment, the UN General Assembly:
Recalls its resolution 43/173 of 9 December 1988 on the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, and in this context stresses that ensuring that any individual arrested or detained is promptly brought before a judge or other independent judicial officer in person and permitting prompt and regular medical care and legal counsel as well as visits by family members and independent monitoring mechanisms are effective measures for the prevention of torture and other cruel, inhuman or degrading treatment and punishment. 
UN General Assembly, Res. 61/153, 19 December 2006, § 11, adopted without a vote.
UN General Assembly
In a resolution adopted in 2007 on torture and other cruel, inhuman or degrading treatment or punishment, the UN General Assembly:
Recalls its resolution 43/173 of 9 December 1988 on the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, and in this context stresses that ensuring that any individual arrested or detained is promptly brought before a judge or other independent judicial officer in person and permitting prompt and regular medical care and legal counsel as well as visits by family members and independent monitoring mechanisms are effective measures for the prevention of torture and other cruel, inhuman or degrading treatment or punishment. 
UN General Assembly, Res. 62/148, 18 December 2007, § 14, adopted without a vote.
UN Economic and Social Council
In a resolution adopted in 2007 entitled “International cooperation for the improvement of access to legal aid in criminal justice systems, particularly in Africa”, ECOSOC:
Recalling the Universal Declaration of Human Rights, which enshrines the key principles of equality before the law, the presumption of innocence and the right to a fair and public hearing by an independent and impartial tribunal, along with all the guarantees necessary for the defence of anyone charged with a penal offence,
Bearing in mind the Standard Minimum Rules for the Treatment of Prisoners, approved in its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977, according to which an untried prisoner shall be allowed to receive visits from his legal adviser,
Bearing in mind also the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, principle 11 of which states that a detained person shall have the right to be assisted by counsel as prescribed by law,
Bearing in mind the Basic Principles on the Role of Lawyers, in particular principle 1, which states that all persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings,
Concerned at the proportion of suspects and pretrial detainees detained for long periods of time in many African countries without being charged or sentenced and without access to legal advice or assistance,
Noting the prolonged incarceration of suspects and pretrial detainees without their being provided with access to legal aid or to the courts, and is concerned that it violates the basic principles of human rights,
Recognizing that providing legal aid to suspects and prisoners may reduce the length of time suspects are held at police stations and detention centres, in addition to reducing the prison population, prison overcrowding and congestion in the courts. 
ECOSOC, Res. 2007/24, 26 July 2007, preamble, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 1996 on the situation of human rights in the Republic of Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia (Serbia and Montenegro), the UN Commission on Human Rights called upon the Government of Croatia “to pursue vigorously prosecutions against those suspected of past violations of international humanitarian law and human rights, while ensuring that the rights … to legal representation are afforded to all persons suspected of such crimes”.  
UN Commission on Human Rights, Res. 1996/71, 23 April 1996, § 22, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2003 on the integrity of the judicial system, the UN Commission on Human Rights:
Stressing that the integrity of the judicial system should be observed at all times,
4. Stresses the importance that everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he/she has had all the guarantees necessary for the defence;
5. Urges States to guarantee that all persons brought to trial before courts or tribunals under their authority have the right to be tried in their presence and to defend themselves in person or through legal assistance of their own choosing. 
UN Commission on Human Rights, Res. 2003/39, 23 April 2003, preamble and §§ 4–5, voting record: 31-1-21.
UN Commission on Human Rights
In a resolution adopted in 2004 on the integrity of the judicial system, the UN Commission on Human Rights:
Stressing that the integrity of the judicial system should be observed at all times,
4. Urges States to guarantee that all persons brought to trial before courts or tribunals under their authority have the right to be tried in their presence, to defend themselves in person or through legal assistance of their own choosing and to have all the guarantees necessary for the defence. 
UN Commission on Human Rights, Res. 2004/32, 19 April 2004, preamble and § 4, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2004 on the rights of the child, the UN Commission on Human Rights called upon all States to ensure that “if they are arrested, detained or imprisoned, children are provided with adequate legal assistance”. 
UN Commission on Human Rights, Res. 2004/48, 20 April 2004, § 35(c), voting record: 52-1-0.
UN Commission on Human Rights
In a resolution adopted in 2005 on the integrity of the judicial system, the UN Commission on Human Rights:
Stressing that the integrity of the judiciary should be observed at all times,
5. Urges States to guarantee that all persons brought to trial before courts or tribunals under their authority have the right to be tried in their presence, to defend themselves in person or through legal assistance of their own choosing and to have all the guarantees necessary for the defence. 
UN Commission on Human Rights, Res. 2005/30, 19 April 2005, preamble and § 5, voting record: 52-0-1.
UN Commission on Human Rights
In a resolution adopted in 2005 on the rights of the child, the UN Commission on Human Rights called upon all States to ensure that “if they are arrested, detained or imprisoned, children are provided with adequate legal assistance”. 
UN Commission on Human Rights, Res. 2005/44, 19 April 2005, § 27(d), voting record: 52-1-0.
No data.
No data.
International Criminal Court
In the Katanga and Chui case before the ICC, the accused, respectively the alleged commander of the Front for Patriotic Resistance of Ituri (FRPI) and the alleged former leader of the Nationalist and. Integrationist Front (FNI) in the Democratic Republic of the Congo (DRC), were charged with jointly committing through other persons various crimes against humanity and war crimes under Articles 7 and 8 of the 1998 ICC Statute. In its decision on the confirmation of charges in 2008, the Pre-Trial Chamber considered the accused’s right to legal representation in pre-trial proceedings. The Pre-Trial Chamber stated:
93. In consideration of the issue presented here, the Chamber is of the view that the right to legal representation applies not only to the trial but also to the pre-trial stages of the proceedings. This right does not, however, confer unlimited access to legal representation. The key issue is whether the absence of legal assistance during the preliminary stages of the proceedings is tantamount to “a violation of internationally recognised human rights” such that it “casts substantial doubt on the reliability of the evidence or the admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings” pursuant to article 69(7) of the [1998 ICC] Statute. As the Chamber previously stated in the Lubanga Decision, it “endorses the human rights and ICTY jurisprudence which focuses on the balance to be achieved between the seriousness of violation and fairness of the trial as a whole.” [ICC, Lubanga case, Decision on the confirmation of charges, § 86]
94. In accepting the findings of the European Commission of Human Rights, the European Court of Human Rights (“the ECtHR”) held on several occasions that:
[t]aking the proceedings as a whole, the Commission was of the view that the absence of a lawyer at the applicant’s various interrogations did not lead to a disadvantage which was likely to affect the position of the defence at the trial and thus also the outcome of the proceedings.
[…] requirements of Article 6 (art. 6) – especially of paragraph 3 (art. 6-3) – may also be relevant before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with them.
[i]n addition, the Court points out that the manner in which Article 6 paras. 1 and 3 (c) (art. 6-1, art. 6-3-c) is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case; in order to determine whether the aim of Article 6 (art. 6) – a fair trial – has been achieved, regard must be had to the entirety of the domestic proceedings conducted in the case.
[…] although Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation, this right, which is not explicitly set out in the Convention, may be subject to restriction for good cause. The question, in each case, is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing.
95. In cases in which the detained person had the opportunity to be represented by counsel at later stages of the proceedings – particularly at the trial and appeals stages – the ECtHR found no breach of article 6(3)(c) of the Convention.
96. The ECtHR also found that:
[w]hile it confers on everyone charged with a criminal offence the right to “defend himself in person or through legal assistance […]”, Article 6 para. 3 (c) (art. 6-3-c) does not specify the manner of exercising this right. It thus leaves to the Contracting States the choice of the means of ensuring that it is secured in their judicial systems, the Court’s task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial.
97. The DRC has therefore taken the approach that the presence of defence counsel at preliminary stages of proceedings is not mandatory, an approach which, to date, has not been found inconsistent with the requirements of a fair trial.
98. Accordingly, the Chamber has used the standard established by general principles of international human rights law for its consideration of the admissibility of the procès-verbal taken in accordance with DRC law. Because it has not been shown that this particular procedure amounted to a violation of internationally recognised human rights, Germain Katanga’s lack of assistance by a defence counsel during the taking of the procès-verbal does not make the procès-verbal inadmissible as evidence per se. 
ICC, Katanga and Chui case, Decision on the confirmation of charges, 30 September 2008, §§ 93–98.
[footnotes in original omitted]
In 2012, the ICC Trial Chamber II acquitted Mr Ngudjolo Chui of all the charges against him. 
ICC, Ngudjolo Chui case, Judgment, 18 December 2012, Disposition.
International Criminal Tribunal for Rwanda
In its judgment in the Kambanda case in 2000, the ICTR Appeals Chamber stated regarding the relation between the issue of indigence and the issue of the right to choose one’s counsel:
With respect to the right to choose one’s counsel, the Appellant argues that he ought to have had the right to choose his counsel and that the violation of this right was a violation of his right to a fair trial. The Appeals Chamber refers on this point to the reasoning of Trial Chamber I in the Ntakirutimana case [ICTR, Ntakirutimana case, Decision on the Motions of the Accused for Replacement of Assigned Counsel, 11 June 1997, § 2 et seq.] and concludes, in the light of a textual and systematic interpretation of the provisions of the [1994 ICTR] Statute and the Rules [of Procedure and Evidence]
[footnote 46: “Textual analysis of subparagraph (d) of paragraph 4 of Article 20 of the Statute shows that the choice of assigned defence counsel is made, in any event, by an authority, not the accused. This Article must be Rule 45 of the Rules and Article 13 of the Directive on the Assignment of Defence Counsel, whereby the Registrar is the person authorized to make the choice. The Registrar therefore has no other obligation than to assign counsel whose name appears on the list of counsel who may be assigned and is not bound by the wishes of an indigent accused.”],
read in conjunction with relevant decisions from the Human Rights Committee
[footnote 47: “According to the Human Rights Committee, ‘article 14, paragraph 3 (d) [of the International Convention on Civil and Political Rights] does not entitle the accused to choose counsel provided to him free of charge’. Osbourne Wright and Eric Harvey v. Jamaica, Comm. No. 459/1991, 8 November 1995, UN Doc. CCPR/C/50/D/330/1988, para. 11.6.”]
and the organs of the European Convention for the Protection of Human Rights and Fundamental Freedoms,
[footnote 48: “… According to the Convention bodies, the right to legal assistance of one’s own choosing is not absolute (X v. United Kingdom, Eur. Comm. H.R., Judgement of 9 October 1978, Application No. 8295/78; Croissant v. Germany, Eur. Ct. H.R., Judgement (Merits) of 25 September 1992, Application No. 13611/88, Series A, no. 237-B, para. 29). It particularly does not apply when legal assistance is free. Indeed, Article 6 (3) (c) does not guarantee the right to choose the defence counsel who will be assigned by the court, nor does it guarantee the right to be consulted on the choice of the defence counsel to be assigned (X v. Federal Republic of Germany, Decision of 6 July 1976, Application No. 6946/75 and F v. Switzerland, Eur. Comm. H.R., Decision of 9 May 1989, Application No. 12152/86). In any event, the authority responsible for appointing counsel has broad discretionary powers: “[the right to counsel of one’s own choosing] is necessarily subject to certain limitations where free legal aid is concerned and also where […]. However, they can override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice.” (Croissant v. Germany, op. cit. supra, para. 29). “]
that the right to free legal assistance by counsel does not confer the right to choose one’s counsel. 
ICTR, Kambanda case, Judgment on Appeal, 19 October 2000, § 33.
International Criminal Tribunal for Rwanda
In its judgment in the Akayesu case in 2001, the ICTR Appeals Chamber stated:
The Appeals Chamber recalls that indigent accused have the right to competent assigned counsel. The Appeals Chamber reiterates, in this connection, its findings in Kambanda that: the effectiveness of representation by assigned counsel must be assured in accordance with the principles relating to the right to a defence, in particular the principle of equality of arms. It recalls that the right to competent counsel is guaranteed under the International Covenant on Civil and Political Rights (Article 14), the European Convention on Human Rights (Article 6) and the American Convention on Human Rights (Article 8). 
ICTR, Akayesu case, Judgment on Appeal, 1 June 2001, § 76.
International Criminal Tribunal for Rwanda
In its judgment in the Bagilishema case in 2001, the ICTR Trial Chamber noted:
[T]he Chamber rendered an Oral Decision on a Defence motion to have at its disposal as many investigators, assistants and Counsel as does the Office of the Prosecutor. The Chamber observed that the principle of equality of arms is an inherent element of the right to a fair trial, which is guaranteed in many international instruments. However, present human rights case law does not require that both parties in a case shall be granted the same level of material means and resources, for instance in relation to lawyers and investigators. The Chamber saw no reason to give a wider interpretation of the principle of equality of arms within the specific context of Article 20 of the [1994 ICTR] Statute. 
ICTR, Bagilishema case, Judgment, 7 June 2001, § 14.
International Criminal Tribunal for Rwanda
In its judgment in the Kajelijeli case in 2005, the ICTR Appeals Chamber considered the law regarding the accused’s right to counsel during questioning:
Under Article 17 of the Tribunal’s Statute, the Prosecution has the power to question suspects. When questioned, a suspect has the right to assistance of counsel, and legal assistance shall be assigned to him or her if he or she does not have sufficient means to pay for counsel. This right to counsel during questioning is restated in Rule 42 of the Rules [of Procedure and Evidence]. Rule 42 also provides that a suspect may voluntarily waive that right but that questioning will cease if the suspect later expresses the desire for assistance of counsel, and will only resume once counsel has been provided. 
ICTR, Kajelijeli case, Judgment on Appeal, 23 May 2005, § 234.
International Criminal Tribunal for Rwanda
In its judgment in the Gacumbitsi case in 2006, the ICTR Appeals Chamber stated:
The Appeals Chamber notes that trial scheduling is subject to the Trial Chamber’s discretion. The accused of course has a right, under Article 20(4)(b) of the [1994 ICTR] Statute, to “adequate time and facilities for the preparation of his or her defence”. But it is the Trial Chamber that is best positioned to consider the demands of trial preparation in each particular case and to set a schedule that respects that right while also avoiding undue delay in the administration of justice. The Appeals Chamber thus will only reverse a Trial Chamber’s scheduling decision upon a showing of abuse of discretion resulting in prejudice, that is, rendering the trial unfair. 
ICTR, Gacumbitsi case, Judgment on Appeal, 7 July 2006, § 19.
International Criminal Tribunal for Rwanda
In its judgment in the Nahimana case in 2007, the ICTR Appeals Chamber recalled that under Article 19(1) of the 1994 ICTR Statute “the Trial Chamber is required to guarantee a fair and expedient trial and full respect for the rights of the accused”. 
ICTR, Nahimana case, Judgment on Appeal, 28 November 2007, § 131.
The Appeals Chamber observed that “the equality of arms principle requires a judicial body to ensure that neither party is put at a disadvantage when presenting its case”. 
ICTR, Nahimana case, Judgment on Appeal, 28 November 2007, § 173.
The Appeals Chamber further stated:
As to the principle of equality of arms, the Appeals Chamber adds that this does not amount to material equality between the parties in terms of financial and/or human resources. As to the right to have adequate time and facilities for the preparation of a defence, that right is enshrined in Article 20(4)(b) of the [1994 ICTR] Statute. When considering an appellant’s submission regarding this right, the Appeals Chamber must assess whether the Defence as a whole, and not any individual counsel, was deprived of adequate time and facilities. Furthermore, the Appeals Chamber agrees with the Human Rights Committee that “adequate time” for the preparation of the defence cannot be assessed in the abstract and that it depends on the circumstances of the case. The Appeals Chamber is of the view that the same goes for “adequate facilities”. A Trial Chamber “shall provide every practicable facility it is capable of granting under the Rules and Statute when faced with a request by a party for assistance in presenting its case”. 
ICTR, Nahimana case, Judgment on Appeal, 28 November 2007, § 220.
International Criminal Tribunal for Rwanda
In the Kalimanzira case, the accused, a senior civil servant, was charged, under Article 2 of the 1994 ICTR Statute, with genocide, complicity in genocide, and direct and public incitement to commit genocide. In its judgment in the case in 2009, the ICTR Trial Chamber considered the Prosecution’s obligation to disclose certain materials to the Defence, stating:
38. While this Chamber has encouraged the cross-examining Party to provide the opposing Party with copies of the documents it intends to use before cross-examining a witness, there is no binding rule to this effect; rather, this relates to the general conduct of trial proceedings, which is a matter falling within the discretion of the Trial Chamber. … Parties may choose to maintain a certain element of surprise. However, depending on the circumstances, a persistent defiance to respect the Chamber’s instructions to provide such documents in advance could suggest a bad faith attempt to undermine the Defence.
43. The determination of which materials are subject to disclosure under Rule 68 of the [ICTR] Rules [of Procedure and Evidence] is a fact-based inquiry made by the Prosecution. If an accused wishes to show that the Prosecution is in breach of its disclosure obligation, he or she must: (1) identify specifically the material sought; (2) show its prima facie probable exculpatory nature; and (3) show that the material requested is in the custody or under the control of the Prosecution. According to the Appeals Chamber, the obligation to disclose exculpatory material forms part of the Prosecution’s duty to assist in the administration of justice, and is as important as the obligation to prosecute. The Prosecution is presumed to discharge its obligation in good faith. If the Chamber is satisfied that the Prosecution has failed to comply with its Rule 68 obligations, the Chamber will examine whether the accused has been prejudiced by a failure amounting to a violation of his right to a fair trial. 
ICTR, Kalimanzira case, Judgment, 22 June 2009, §§ 38 and 43.
[footnotes in original omitted]
International Criminal Tribunal for the former Yugoslavia
In its Reasons for Decision on the Prosecution Motion Concerning Assignment of Counsel in the Slobodan Milošević case in 2003, the ICTY Trial Chamber stated:
18. As noted Article 21(4) of the [1993 ICTY] Statute provides that:
In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:
[…]
(d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
[…].
A plain reading of this provision indicates that there is a right to defend oneself in person and the Trial Chamber is unable to accept the Prosecution’s proposition that it would allow for the assignment of defence counsel for the Accused against his wishes in the present circumstances.
19. This interpretation is supported by the nature of the proceedings at the International Tribunal.
20. As already noted, the proceedings of the International Tribunal are essentially adversarial and it is against that background that this Discussion must follow. The adversarial character of the proceedings of the International Tribunal is shown by the role of the Prosecutor, as set out in Article 18 of the [1993 ICTY] Statute, and by Rule 85 of the Rules [of Procedure and Evidence] which identifies the distinct roles for the Prosecutor and the Defence in the presentation of evidence.
21. Adversarial proceedings are a feature of the common law and find little echo in systems based on civil law. As the Amici Curiae have correctly observed, the imposition of a defence counsel upon an accused who does not want one is a feature of inquisitorial systems, but not of adversarial systems.
22. The reasons for this common law rule are clearly set out by the U.S. Supreme Court in Faretta v. California, which concerned the question whether a defendant in a state criminal trial has a right under the U.S. Constitution to proceed without counsel when he voluntarily and intelligently elects to do so. The Court noted that “[t]his Court’s past recognition of the right of self-representation, the federal-court authority holding the right to be of constitutional dimension, and the state constitutions pointing to the right’s fundamental nature form a consensus not easily ignored. […] We confront here a nearly universal conviction, on the part of our people as well as our courts, that forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so”. The Court found that “[t]he language and spirit of the Sixth Amendment contemplate that counsel, like the other defence tools guaranteed by the Amendment, shall be an aid to a willing defendant – not an organ of the State interposed between an unwilling defendant and his right to defend himself personally. To thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment. In such a case, counsel is not an assistant, but a master, and the right to make a defence is stripped of the personal character upon which the Amendment insists.” The Court thus concluded that the Sixth Amendment, when naturally read, implies a right of self-representation, and noted that this reading is reinforced by the Amendment’s roots in English legal history. It pointed out that only the sixteenth century Star Chamber in the long history of English legal history adopted a practice of forcing counsel upon an unwilling defendant in criminal proceedings, and recounted Stephen’s comment on this procedure: “There is something specially repugnant to justice in using rules of practice in such a manner as to debar a prisoner from defending himself, especially when the professed object of the rules so used is to provide for his defence.” The Court noted that with the exception of the practice of the Star Chamber, the right to self-representation in England predates the right to legal counsel in serious crime cases.
23. The Supreme Court also said: “It is undeniable that in most criminal prosecutions defendants could better defend with counsel’s guidance than by their own unskilled efforts. But where the defendant will not voluntarily accept representation by counsel, the potential advantage of a lawyer’s training and experience can be realized, if at all, only imperfectly. To force a lawyer on a defendant can only lead him to believe that the law contrives against him.”
24. There is a further practical reason for the right to self-representation in common law. While it may be the case that in civil law systems it is appropriate to appoint defence counsel for an accused who wishes to represent himself, in such systems the court is fulfilling a more investigative role in an attempt to establish the truth. In the adversarial systems, it is the responsibility of the parties to put forward the case and not for the court, whose function it is to judge. Therefore, in an adversarial system, the imposition of defence counsel on an unwilling accused would effectively deprive that accused of the possibility of putting forward a defence. In this connection, Article 21(4)(d) of the Statute may be said to be reflective of the common law position.
25. Furthermore, the obligation of “putting a case”, i.e. putting forward the defence version of events if it differs from that put forward by a witness, is reflected in Rule 90 (H) of the Rules [of Procedure and Evidence]. As the Amici Curiae note, such an obligation cannot be fulfilled by counsel who is not instructed by an accused as to the defence to put forward.
26. All these reasons lead the Trial Chamber to reject the suggestion that defence counsel should be imposed on an accused against his will in proceedings that are essentially adversarial.
27. The Trial Chamber turns to consider the international and regional conventions. (The emphasis has been supplied in the following citations.) Article 14(3)(d) of the International Covenant on Civil and Political Rights (“ICCPR”) provides that in the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; […].
28. Article 67(1)(d) of the Statute of the International Criminal Court (“ICC Statute ”) provides that an accused has the right:
to be present at the trial, to conduct the defence in person or through legal assistance of the accused’s choosing, […].
(This right is subject to Article 63(2), which deals with disruptive conduct by the accused in the courtroom.)
29. Article 8(2)(d) of the American Convention on Human Rights (“ACHR”) provides that every person is entitled, with full equality, to the following minimum guarantees:
the right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing, […].
30. Article 6(3)(c) of the European Convention on Human Rights provides that everyone charged with a criminal offence has the following minimum rights:
to defend himself in person or through legal assistance of his own choosing […].
33. … it may be noted that the Human Rights Committee found in Michael and Brian Hill v. Spain that the accused has a right to defend himself pursuant to Article 14(3)(d) of the ICCPR. In that case the Spanish courts had denied one of the appellant’s the right to defend himself. The Committee noted that Spanish legislation does not allow an accused person to defend himself, and, without further discussion, concluded that the appellant’s right to defend himself had not been respected. The Prosecution seeks to distinguish this authority on the grounds that the circumstances “were very special”, since the defendants, who were foreign, “were treated very unfairly by the Spanish system.”
36. … the Trial Chamber concludes that the international and regional conventions (in similar language) plainly articulate a right to defend oneself in person. Whereas it is possible that some of these conventions may allow for certain exceptions to the main principle that an accused has a right to defend himself in person, it should be noted that the only case on the issue decided under these conventions which the Trial Chamber has been able to find, did not allow for such an exception: the above mentioned Michael and Brian Hill v. Spain.
37. Despite the fact that the Human Rights Committee did not discuss its findings in detail, this case must be seen as highly relevant to the correct interpretation of Article 21(4)(d) of the ICTY Statute, especially since this provision is identical to Article 14(3)(d) of the ICCPR. The ICCPR is an international convention of widespread acceptance, with currently 146 State Parties. Further, it is important to note that in the Secretary-General’s Report on the Statute, it is stated that it is axiomatic that the International Tribunal must fully respect the rights of the accused: “In the view of the Secretary-General, such internationally recognized standards are, in particular, contained in article 14 of the International Covenant on Civil and Political Rights.” In the Trial Chamber’s view, it is appropriate to be guided by the ICCPR and the Human Rights Committee’s interpretation of it, which confirms the right to self-defence and rejects the imposition of defence counsel on an unwilling accused.
39. The Trial Chamber is satisfied that the Accused, who has clearly and unequivocally informed the Trial Chamber that he does not want to be represented by defence counsel is competent to defend himself in person. In the words of the U.S. Supreme Court in Faretta, the Accused is “literate, competent, and understanding, and [he is] voluntarily exercising his informed free will.” He has been advised by the Trial Chamber that it would be in his best interests to accept the assistance of defence counsel, but, nonetheless, he is entitled to defend himself in person.
40. However, the right to defend oneself in person is not absolute. Thus Rule 80(B) of the Rules [of Procedure and Evidence] provides that a “Trial Chamber may order the removal of an accused from the courtroom and continue the proceedings in the absence of the accused if the accused has persisted in disruptive conduct following a warning that such conduct may warrant the removal of the accused from the courtroom.” Clearly, an accused whose behaviour has resulted in his removal from the courtroom pursuant to Rule 80(B) of the Rules, has also relinquished his right to defend himself in person. Furthermore, although Barayagwiza and the present case can be distinguished (as correctly pointed out by the Amici Curiae), there may be circumstances, as envisaged by Judge Gunawardana, where it is in the interests of justice to appoint counsel. No such circumstances have, as yet, arisen in this trial. However, as the Trial Chamber has said, it will keep the position under review.
41. Finally, with regard to the Prosecution’s submission that Article 20(1) of the [1993 ICTY] Statute necessitates the imposition of defence counsel on the Accused since this provision requires the Trial Chamber to ensure that “a trial is fair and expeditious”, the Trial Chamber notes the following. A Trial Chamber has indeed an obligation to ensure that a trial is fair and expeditious; moreover, where the health of the Accused is in issue, that obligation takes on special significance. However, as the Article in question continues, the Trial Chamber has an obligation to do so “with full respect for the rights of the accused”. In other words, while ensuring that the trial is fair and expeditions, a Trial Chamber must also ensure that the rights of the accused, as set out in Article 21 of the [1993 ICTY] Statute, are not infringed. 
ICTY, Slobodan Milošević case, Reasons for Decision on the Prosecution Motion Concerning Assignment of Counsel, 4 April 2003, §§ 18–30, 33, 36–37 and 39–41.
[emphasis in original]
In its Decision on the Interlocutory Appeal by the Amici Curiae against the Trial Chamber Order Concerning the Presentation and Preparation of the Defence Case in 2004, the ICTY Appeals Chamber stated:
Where an accused elects self-representation, the concerns about the fairness of the proceedings are, of course, heightened, and a Trial Chamber must be particularly attentive to its duty of ensuring that the trial be fair… In this case, the Trial Chamber indicated that it will ensure that the Accused be provided with resources sufficient to prepare his defence. 
ICTY, Slobodan Milošević case, Decision on the Interlocutory Appeal by the Amici Curiae against the Trial Chamber Order Concerning the Presentation and Preparation of the Defence Case, 20 January 2004, §§ 19–20.
In a decision in 2004 relating to the assignment of defence counsel, the ICTY Trial Chamber qualified the right of self-representation:
30. While Article 21 of the [1993 ICTY] Statute sets out rights of the Accused, Article 20 imposes statutory obligations on Trial Chambers to ensure the fairness and expeditiousness of the trial process as a whole, according full respect to the rights of the Accused. The relevant provisions are these:
Article 20
Commencement and conduct of trial proceedings
1. The Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused and due regard for the protection of victims and witnesses.
Article 21
Rights of the accused
2. In the determination of charges against him, the accused shall be entitled to a fair and public hearing, subject to article 22 of the Statute.
4. In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:
(c) to be tried without undue delay;
(d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
(e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him ….
31. An analysis of the issue of the right of an accused to represent himself calls for an interpretation of Articles 20 and 21 of the Statute, in particular, Article 21(4)(d). From the earliest days of the work of the International Tribunal, it was decided that the Statute is to be interpreted as a treaty. Consequently, Article 31(1) of the Vienna Convention on the Law of Treaties is applicable: a treaty is to be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. The four elements of Article 31(1) – good faith, textuality, contextuality, and object and purpose – are to be applied together, not individually. The main issue, therefore, is the ordinary meaning of the provisions of Article 21(4)(d) in their context and in light of the object and purpose of the Article and the Statute as a whole.
32. The minimum guarantees set out in Article 21(4) of the Statute are elements of the overarching requirement of a fair trial. It is in that context that the Accused’s right to defend himself in person, or through legal assistance of his own choosing, as set out in Article 21(4)(d), must be read. Whether by way of self-representation or legal assistance, the purpose of the provision is to secure for an accused the right to a defence, which is a prerequisite for a fair trial. Defence “in person” or “through legal assistance of his own choosing” are simply means whereby the minimum guaranteed right to “defend himself”, i.e., to a defence, may be exercised. In the event that self-representation gives rise to the risk of unfairness to the accused, then steps must be taken, consistent with the provisions of Articles 20 and 21, to secure for an accused a fair trial; otherwise, the purpose of securing for the accused the right to a defence will be nullified. Fundamental to that is ensuring that he has the opportunity and facility to present his defence fully and effectively. However, that does not oblige the Trial Chamber to indulge the wish of an accused to conduct his own defence where his capacity to do so is so impaired that, were he to continue to do so, there would be a material risk that he would not receive a fair trial. The mere assertion on the part of the Accused of his right to defend himself does not ensure an effective defence in circumstances where he is seriously ill and regularly prevented for protracted periods from acting in his own defence.
33. If at any stage of a trial there is a real prospect that it will be disrupted and the integrity of the trial undermined with the risk that it will not be conducted fairly, then the Trial Chamber has a duty to put in place a regime which will avoid that. Should self-representation have that impact, we conclude that it is open to the Trial Chamber to assign counsel to conduct the defence case, if the Accused will not appoint his own counsel. Disruption of a trial, whatever the circumstances, may give rise to the risk of a miscarriage of justice because the whole proceedings have not been conducted and concluded fairly. Wherever such a risk arises, it is necessary to take steps to avoid it. It is widely recognised in domestic jurisdictions that, where an accused who represents himself disrupts his trial by misbehaviour, he may be removed from the court and counsel appointed to conduct his defence. That step is necessary to secure the integrity of the proceedings with a view to ensuring that the trial as a whole is fair. There is no difference in principle between deliberate misconduct which disrupts the proceedings and any other circumstance which so disrupts the proceedings as to threaten the integrity of the trial. These are simply examples of circumstances in which the right to represent oneself must yield to the overarching right to a fair trial. There are other cases in which the enjoyment of a right under Article 21(4) of the Statute must yield to the overarching right to a fair trial: for example, where the exercise of the right to self-representation becomes an obstacle to the achievement of a trial without undue delay, which is a specific right or minimum guarantee designed, inter alia, to maintain the integrity and fairness of the process. Should a trial not be conducted expeditiously, i.e., without undue delay, the risk of unfairness will arise requiring the Trial Chamber to consider how that risk may be avoided.
34. The right to represent oneself must therefore yield when it is necessary to ensure that the trial is fair. The primary duty of the Trial Chamber, as reflected in Article 20 of the Statute, must always be to take such steps as are necessary and available to ensure that the trial of the accused is completed fairly and expeditiously. Thus the ordinary meaning of Article 21(4)(d) of the Statute, when read in light of the object and purpose of securing for an accused his right to a defence and to a fair trial, is that an accused has a right to represent himself, but that right may be lost if the effect of its exercise is to obstruct the achievement of that object and purpose. The Trial Chamber is, therefore, entirely satisfied that, on the proper interpretation of Articles 20 and 21, it is competent, in appropriate circumstances, to insist upon an accused being represented by counsel in spite of his wish to represent himself. If the Accused refuses to appoint his own counsel, then it is open to the Trial Chamber to assign counsel to conduct the defence case.
35. It must therefore also be competent to insist upon the greater involvement of legal assistance where the accused has already engaged the assistance of lawyers, albeit they work “behind the scenes” and not in the courtroom. In reality the Rules of Procedure and Evidence (“Rules”) and the practice followed by the International Tribunal allow for four possible arrangements for the presentation of the defence case, rather than simply a stark choice between self-representation or representation by counsel. The Rules and the practice followed permit an accused to:
(1) Exclusively conduct his own defence, or
(2) Leave the conduct of the defence exclusively to counsel, or
(3) Present his defence in conjunction with counsel, according to a division of responsibility that they agree upon, or
(4) Conduct his own defence exclusively in person when in court, while having the assistance, outside the courtroom, of experienced lawyers who do not appear before the Trial Chamber.
The last of these was the arrangement in the present case prior to the assignment of counsel.
36. It must similarly be open to the Trial Chamber to order either that counsel conduct the defence in its entirety or conduct the majority of the defence case, while permitting the accused also to participate by presenting some parts in person, such as the statement upon opening of the defence case. Even in the situation where assigned counsel are designated as counsel for the accused, the Trial Chamber might allow the accused to continue to participate actively in the presentation of his case by examining and re-examining witnesses on particular issues on which the accused satisfies the Chamber it is appropriate for him to ask questions additional to those asked by assigned counsel. What arrangement should be put in place is for the Trial Chamber to determine, having regard to all the surrounding circumstances, including the circumstances under which the trial is taking place and the personal circumstances of the accused. Above all other considerations, the arrangement adopted should be one that ensures not only that the proceedings are conducted fairly but also that a fair trial is concluded. It would be intolerable for any accused to have accusations as serious as those against this Accused left outstanding against him for an unreasonable time or, worse still, unresolved.
37. While extensive research has not led to the identification of any case in any jurisdiction where counsel has been assigned to an accused person because he was unfit to conduct his case as the result of impaired physical health, we have equally not identified any international or domestic authority which is inconsistent with our interpretation of Articles 20 and 21 of the Statute. It may be that the matter only arises now for determination because of the exceptional circumstances of the present trial.
38. The jurisprudence of this Tribunal, the International Tribunal for Rwanda (“ICTR”), and the Special Court for Sierra Leone (“SCSL”) recognises that there may be circumstances where it is competent and appropriate for a Trial Chamber to insist that the defence is presented by counsel and not by the accused in person. Circumstances in which such a course may be appropriate have to be determined on a case-by-case basis, having regard to the particular circumstances of the case as a whole, including such factors as the ability of the accused to conduct his own defence, as well as his attitude and actions.
39. In Prosecutor v. Norman, et al. before the SCSL, the Trial Chamber denied a request of the accused to defend himself, holding that the right to self-representation enshrined in its Statute “is not absolute but rather, a qualified right”. The Trial Chamber concluded that, in the circumstances of that case, it was not proper to allow the accused to exercise his right to self-representation without qualifications.
40. In Prosecutor v. Barayagwiza before the ICTR, assigned defence counsel asked to withdraw from the case on the basis that the accused had instructed counsel not to represent him at the trial and refused to attend the trial. Finding the attitude of the accused to be obstructing the course of justice, the Trial Chamber concluded that withdrawal of counsel was not warranted. The Chamber further noted that counsel in that case had been assigned, and not appointed, which “does not only entail obligations towards the client, but also implies that he represents the interest of the Tribunal to ensure that the Accused receives a fair trial”. Judge Gunawardana envisaged circumstances in which it may be in the interests of justice to appoint counsel.
41. In Prosecutor v. Šešelj, the Trial Chamber recognised that the wording of Article 21 of the Statute “leave[s] open the possibility of assigning counsel to an accused on a case by case basis in the interests of justice”. Although the accused in that case made it clear that he intended to represent himself, the Trial Chamber considered the right to self-representation as articulated in the Statute as a starting point, but noted that according to international and national jurisprudence “this right is not absolute”, and decided that “standby counsel” should be appointed with various responsibilities, including the possibility of taking over the conduct of the defence case against the will of the accused.
42. This case law from the three international tribunals clearly suggests that the right of an accused to act on his own behalf embodied in the Statute of this Tribunal is not unqualified.
43. Generally, a provision similar to Article 21(4)(d) of the Statute is found in the constitutive instruments of international criminal tribunals, as well as international and regional conventions on human rights. While international and regional human rights conventions plainly articulate a right to defend oneself in person, many States parties to those conventions have systems in which self-representation, as recognised in those instruments, is not unqualified; thus several States parties originating from the civil law tradition provide for mandatory defence counsel in domestic criminal procedures. And the fact that the law of some States precludes a defendant in a criminal case from representing himself, requiring that a lawyer assist him with his defence, is not incompatible with the ECHR [European Convention on Human Rights]. Thus, in the case of Croissant v. Germany, the European Court of Human Rights held that there had been no violation of Article 6(3)(c) of the Convention, which article contains the minimum right of an accused “to defend himself in person or through legal assistance of his own choosing”, where the accused had appointed two counsel of his own choosing, but the Regional Court insisted upon the appointment of a third in spite of the accused’s strong objection to that appointment. The Court said that “it is for the courts to decide whether the interests of justice require that the accused be defended by counsel appointed by them. When appointing defence counsel the national courts must certainly have regard to the defendant’s wishes…. However, they can override those wishes when there are relevant and sufficient grounds for holding that this is necessary in the interests of justice”. The Court specifically noted that “avoiding interruptions or adjournments corresponds to an interest of justice which is relevant in the present case and may well justify an appointment against the accused’s wishes”.
44. Conversely, the United Nations Human Rights Committee found in Michael & Brian Hill v. Spain that the accused’s right to defend himself had not been respected, contrary to Article 14 paragraph 3(d) of the ICCPR. In that case the Spanish courts had denied the accused the right to defend himself, over his insistence that he wanted to do so. However, as this Trial Chamber observed in its Decision of 4 April 2003, the Committee gave no reason for its determination. The Committee were not faced with circumstances which can be compared to those now being addressed.
45. Common law jurisdictions, in which proceedings are adversarial, typically recognise an accused’s right to represent himself at trial. As noted in the Trial Chamber’s Decision of 4 April 2003, the classical statement of the right to self-representation was set out by the United States Supreme Court in Faretta v. California. In recognising the constitutional right of an accused to represent himself at trial, the Court held that forcing a lawyer upon an accused who is literate, competent, and understanding, and who voluntarily exercises his informed free will to represent himself by waiving his right to assistance of counsel, would be a breach of his constitutional right to conduct his own defence. However, there are qualifications to this general rule. In Faretta itself, the Court recognised that the right to self-representation by an accused was not without limits: “the trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct”, and “a State may – even over objection by the accused – appoint ‘standby counsel’ to aid the accused if and when the accused requests help, and to be able to represent the accused in the event that termination of the defendant’s self-representation is necessary”. Furthermore, the Court noted in Faretta that “[t]he right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law”. Moreover, in Martinez v. Court of Appeal of California, the United States Supreme Court confined its holding in Faretta to a defendant’s self-representation at trial and held that a defendant did not have a constitutional right to represent himself on appeal. In so holding, the Court reasoned that, “[a]s the Faretta opinion recognized, the right to self-representation is not absolute” and that “[e]ven at the trial level, therefore, the government’s interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant’s interest in acting as his own lawyer”.
46. In England and Wales, the Youth Justice and Criminal Evidence Act provides that an accused charged with a sexual offence may not cross-examine in person certain protected witnesses. With respect to other witnesses, the court may in the interests of justice prevent such an accused from cross-examining and must invite the accused to arrange for counsel to conduct the cross-examination. Where such arrangements have not been made, the court must consider whether it is in the interests of justice for the witness to be cross-examined by court-appointed counsel, who is not responsible to the accused.
47. In Scotland, the Criminal Procedure Act, as amended by the Sexual Offences Act of 2002, provides that an accused charged with a sexual offence is prohibited from conducting his defence in person at trial. Moreover, in the event that the accused has not engaged legal representation for the purposes of his defence at trial, the court must, at its own hand, appoint a lawyer who is not susceptible to dismissal by the accused or obliged to comply with any instruction by the accused to dismiss him. Once the lawyer has been appointed, it is his duty to ascertain and act upon the instructions of the accused and, where the accused gives no instructions or inadequate or perverse instructions, to act in the best interests of the accused.
48. In Canada, the Criminal Code provides that an accused charged with a sexual offence shall not personally cross-examine a witness under 18 years of age, unless the court decides that the proper administration of justice so requires. Where such an accused is prevented from cross-examining the witness, the court shall appoint counsel for the purpose of conducting the cross-examination. Australia and New Zealand have similar provisions in their criminal codes.
49. While common law jurisdictions recognise a right to self-representation, in civil law systems representation by counsel is often mandatory in serious criminal cases. This is a feature of criminal procedure in countries such as France, Germany, Belgium, Austria, Switzerland, and the Republic of Korea, among others. The Code of Criminal Procedure of the Federal Republic of Yugoslavia (2001), which remains valid in Serbia, provides that imposition of defence counsel is mandatory in proceedings relating to offences which carry in excess of ten years imprisonment. In such cases, where the accused fails to retain counsel, the presiding judge appoints counsel and notifies the defendant of the appointment. The rationale behind the mandatory assignment of counsel in these jurisdictions appears to be that, in cases where the personal liberty of an accused is at stake, the right to a fair trial, which includes the right to an adequate and effective defence, actually imposes a duty on the State to ensure that the accused is represented by professional counsel whose task is to ensure that the interests of the accused are fully protected throughout the proceedings.
50. In its “Reasons for Decision on the Prosecution Motion Concerning Assignment of Counsel”, issued 4 April 2003, the Trial Chamber held that a plain reading of Article 21(4)(d) of the Statute, “indicates that there is a right to defend oneself in person”, and that the nature of the proceedings at the International Tribunal, which are essentially adversarial, supported this interpretation. However, the Trial Chamber also expressed the view that it was satisfied that the “right to defend oneself in person is not absolute”, and that there may be circumstances where it is in the interests of justice to appoint counsel. The Chamber gave as an example of such circumstances the situation where an accused has to be removed from the courtroom pursuant to Rule 80(B) of the Rules on account of his disruptive behaviour. The Chamber went on to state its intention to keep the position under review. The key reasoning in the Decision of 4 April 2003 was that the Trial Chamber found that the Accused had a right to defend himself in person “in the present circumstances”. The Chamber was influenced by the essentially adversarial nature of these proceedings not to assign counsel to the Accused against his wishes at that stage. However, the competence of assigning counsel in appropriate circumstances was recognised. Since then the Chamber has kept the conduct of the trial, in the light of the health problems of the Accused, under constant review and has regularly ordered and considered reports on the state of his health and the treatment recommended, leading ultimately to the decision to obtain reports which directly addressed the question of the fitness of the Accused to conduct his own case. The Chamber is now considering the matter in circumstances quite different from those which pertained at the end of 2002 when the debate leading to the “Reasons” issued on 4 April 2003 took place.
51. For all these reasons the Trial Chamber is satisfied that the overarching right to a fair trial, which includes a right to a defence, may, where appropriate, lead to the assignment of counsel for the Accused to conduct his defence. A proper interpretation of Articles 20 and 21 of the Statute yields that conclusion. That interpretation is consistent with such international authority as there is. We have identified no authority from domestic jurisdictions which indicates any reason in principle why counsel should not be assigned. We have identified many examples, principally from civil law jurisdictions but increasingly also in common law jurisdictions, of circumstances where assignment of counsel is authorised and occurs in practice. Crucial to the determination whether the trial was fair will be the fact that, whatever regime is put in place – self-representation combined with legal assistance, amici curiae, or mandatory assigned counsel – the Accused was given a reasonable opportunity to answer the charges against him and to lead evidence in support of that answer. 
ICTY, Slobodan Milošević case, Reasons for Decision on Assignment of Defence Counsel, 22 September 2004, §§ 30–51.
In its Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel in 2004, the ICTY Appeals Chamber affirmed the imposition of defence counsel ordered by the Trial Chamber:
11. Both the Trial Chamber and the Prosecutor recognize that defendants have a presumptive right to represent themselves before the Tribunal. It is not hard to see why. Article 21 of the ICTY Statute, which tracks Article 14 of the International Convention on Civil and Political Rights, recognizes that a defendant is entitled to a basic set of “minimum guarantees, in full equality,” including the right “to defend himself in person or through legal assistance of his own choosing.” This is a straightforward proposition: given the text’s binary opposition between representation “through legal assistance” and representation “in person,” the Appeals Chamber sees no reasonable way to interpret Article 21 except as a guarantee of the right to self-representation. Nor should this right be taken lightly. The drafters of the Statute clearly viewed the right to self-representation as an indispensable cornerstone of justice, placing it on a structural par with defendants’ right to remain silent, to confront the witnesses against them, to a speedy trial, and even to demand a court-appointed attorney if they cannot afford one themselves. In the words of the United States Supreme Court in Faretta v. California, which was recognized by the Trial Chamber as the classic statement of the right to self-representation, an “unwanted counsel ‘represents’ the defendant only through a tenuous and unacceptable legal fiction,” such that “counsel [becomes] not an assistant, but a master.” Defendants before this Tribunal, then, have the presumptive right to represent themselves notwithstanding a Trial Chamber’s judgment that they would be better off if represented by counsel.
12. While this right to self-representation is indisputable, jurisdictions around the world recognize that it is not categorically inviolable. In Faretta itself, the United States Supreme Court noted that, since “[t]he right of self-representation is not a license to abuse the dignity of the courtroom,” a trial judge “may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct.” Recognizing this same basic contingency of the right, England, Scotland, Canada, New Zealand, and Australia have all developed the principle that, in order to protect vulnerable witnesses from trauma, courts may severely restrict the right of defendants to represent themselves in sexual assault trials. Scotland goes so far as to forbid such defendants from conducting any portion of their defenses in person. And while this Appellate Chamber has not previously passed on the question, existing precedent from contemporary war crimes tribunals is unanimous in concluding that the right to self-representation “is a qualified and not an absolute right.”
13. Recognizing that a defendant’s right to represent himself is subject to some limitations, however, does not resolve this case. It must further be decided whether the right may be curtailed on the grounds that a defendant’s self-representation is substantially and persistently obstructing the proper and expeditious conduct of his trial. The Appeals Chamber believes that, under the appropriate circumstances, the Trial Chamber may restrict the right on those grounds. It is particularly instructive in this regard to consider the parallel statutory right of an accused before the Tribunal “to be tried in his [own] presence” – a right that is found in the very same clause of the ICTY Statute as the right to self-representation. Notwithstanding the express enunciation of this right in the Statute, Rule 80(B) of the Rules of Procedure and Evidence allows a Trial Chamber to “order the removal of an accused from the courtroom and continue the proceedings in the absence of the accused if the accused has persisted in disruptive conduct.” If a defendant’s right to be present for his trial – which, to reiterate, is listed in the same string of rights and indeed in the same clause as the right to self-representation – may thus be restricted on the basis of substantial trial disruption, the Appeals Chamber sees no reason to treat the right to self -representation any differently. 
ICTY, Slobodan Milošević case, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel, 1 November 2004, §§ 11–13.
While affirming the imposition of defence counsel, the ICTY Appeals Chamber reversed the Trial Chamber’s “Order on Modalities” defining the defence counsel’s role:
16. The Appeals Chamber parts ways with the Trial Chamber … in its assessment of the Order on Modalities. In spelling out the future working relationship between Milosevic and Assigned Counsel, the Order sharply restricts Milosevic’s ability to participate in the conduct of his case in any way. The Order makes his ability to participate at all contingent on a case-by-case, discretionary decision by the Trial Chamber. It implies that he would only occasionally – “where appropriate” – be permitted to examine witnesses. And it indicates that, even where he is permitted to examine a witness, he may do so only after Assigned Counsel had already completed their examination. In every way, then, the Order relegates Milosevic to a visibly second-tier role in the trial.
17. These sharp restrictions, unfortunately, were grounded on a fundamental error of law: the Trial Chamber failed to recognize that any restrictions on Milosevic’s right to represent himself must be limited to the minimum extent necessary to protect the Tribunal’s interest in assuring a reasonably expeditious trial. When reviewing restrictions on fundamental rights such as this one, many jurisdictions are guided by some variant of a basic proportionality principle: any restriction of a fundamental right must be in service of “a sufficiently important objective,” and must “impair the right… no more than is necessary to accomplish the objective.” Similarly, while the International Covenant on Civil and Political Rights allows some restriction of certain civil rights where “necessary to protect national security, public order (ordre public), public health or morals, or the rights and freedoms of others,” the United Nations Human Rights Committee has observed that any such restrictions “must conform to the principle of proportionality;… they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected.” And the ICTY itself has been guided by a “general principle of proportionality” in assessing defendants’ suitability for provisional release, noting that a restriction on the fundamental right to liberty is acceptable only when it is “(1) suitable, (2) necessary and when (3) its degree and scope remain in a reasonable relationship to the envisaged target.”
18. The Appeals Chamber considers that a proportionality principle of this sort was clearly called for here … [T]he Trial Chamber failed to impose a carefully calibrated set of restrictions on Milosevic’s trial participation. Given the need for proper respect of a right as fundamental as this one, this failure was an improper exercise of the trial court’s discretion. 
ICTY, Slobodan Milošević case, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defense Counsel, 1 November 2004, §§ 16–18.
Following the death of the accused, proceedings were terminated by the Trial Chamber on 14 March 2006.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Simić case in 2003, the ICTY Trial Chamber stated that the rights to a fair trial are encompassed in common Article 3 of the 1949 Geneva Conventions and that such rights include, inter alia, “to have adequate time and facilities for the preparation of his or her defence [and to have legal assistance”¨. 
ICTY, Simić case, Judgment, 17 October 2003, § 678.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Krstić case in 2004, the ICTY Appeals Chamber stated:
The disclosure of exculpatory material is fundamental to the fairness of proceedings before the Tribunal, and considerations of fairness are the overriding factor in any determination of whether the governing Rule [Rule 68 of the Rules of Procedure and Evidence: Disclosure of Exculpatory and Other Relevant Material] has been breached. The Appeals Chamber is conscious that a broader interpretation of the obligation to disclose evidence may well increase the burden on the Prosecution, both in terms of the volume of material to be disclosed, and in terms of the effort expended in determining whether material is exculpatory. Given the fundamental importance of disclosing exculpatory evidence, however, it would be against the interests of a fair trial to limit the Rule’s scope for application in the manner suggested by the Prosecution. 
ICTY, Krstić case, Judgment on Appeal, 19 April 2004, § 180.
International Criminal Tribunal for the former Yugoslavia
In its Decision on Appeal Against the Trial Chamber’s Decision (No. 2) on Assignment of Counsel in the Vojislav Šešelj case in 2006, the ICTY Appeals Chamber stated:
An accused appearing before this Tribunal is entitled to certain minimum guarantees pursuant to Article 21(4) of the Statute of the International Tribunal. Article 21(4)(d) of the Statute grants the right of an accused “to defend himself in person or through legal assistance of his own choosing”. The jurisprudence of this Tribunal has interpreted this provision of Article 21 as providing an accused with “the presumptive right to self-representation”. 
ICTY, Vojislav Šešelj case, Decision on Appeal Against the Trial Chamber’s Decision (No. 2) on Assignment of Counsel, 8 December 2006, § 19.
In his Decision on Financing the Defence of the Accused in 2007, Pre-Trial Judge Jean-Claude Antonetti commented on the rights of the accused:
33. Article 20(1) of the [1993 ICTY] Statute provides that “the Trial Chamber[…] shall ensure that a trial is fair and expeditious and that proceedings are conducted in accordance with the rules of procedure and evidence, with full respect for the rights of the accused.” Moreover, the Appeals Chamber explicitly recalled that the Trial Chamber seized of the case must ensure the fairness of the trial.
34. The rights of the Accused before the Tribunal are set out in Article 21 of the Statute. The article provides in particular that:
4. In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality:
[…]
(b) to have adequate time and facilities for the preparation of his defence […];
[…]
(d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
(e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same condition as witnesses against him;
[…]
35. Pursuant to Rules 20 and 21 of the Statute, the Trial chamber, sitting as a pre-trial Judge, not only has the power but also the inherent duty to ensure a fair trial and a proper administration of justice…
1.The Right of Self-Representation
38. Pursuant to Article 20(1) of the Statute it is incumbent upon the pre-trial Judge to ensure that rights of the accused are duly respected. These rights are set out in Article 21 of the Statute. Beyond the principles of equality, equity and publicity, as well as that of the presumption of innocence, paragraph 4 of Article 21 of the Statute provides a number of minimal guarantees to which all accused are entitled, including the right to “have adequate time and facilities for the preparation of his defence”, to defend himself, “to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.” [Emphasis in original] Accordingly, Article 21(4) echoes the wording of Article 14 of the International Covenant on Civil and Political Rights.
39. The Statute therefore establishes the right to represent oneself as one of the rights the Trial Chamber must guarantee to any Accused before the Tribunal. Moreover this was emphasized by the Appeals Chamber of the Tribunal on several occasions when it held that the right to defend oneself was a fundamental right and that
the Appeals Chamber [in the Slobodan Milošević case] sees no reasonable way to interpret Article 21 except as a guarantee of the right to self representation. Nor should this right be taken lightly. The drafters of the Statute clearly viewed the right to self-representation as a indispensible cornerstone of justice, placing it on a structural par with defendants’ right to remain silent, to confront the witnesses against them, to a speedy trial, and even to demand a court-appointed attorney if they cannot afford one themselves.
In the present case, the Appeals Chamber has on two occasions restored the right of the accused to represent himself.
40. In the Krajišnik Interlocutory Decision, the Appeals Chamber held that while self-representation may never be to the Accused’s advantage, the fact remains that by virtue of Article 21(4)(d), which is the “cornerstone”, he always has the right to do so.
2.The Status of Costs for the Defence of a Self-Represented Accused
41. In the Statute, as well as in the Rules [of Procedure and Evidence] and the Directive [on Assignment of Defence Counsel], payment of the defence costs of an Accused lacking the financial means to cover them is organized through the assignment of a counsel and the payment of his fees. Accordingly, even though they are on an equal footing as the right of the accused “to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it,” the implementing provisions of his right to represent himself are not set out in the Statute.
42. The Statute, the Rules and the Directive are silent on the issue of payment of the defence costs of a self-represented Accused who claims indigence, which leaves a gap in the law. In order to ensure the effective exercise of the right of any accused to represent himself and for this right not to remain a dead letter, in the absence of an ad hoc judicial decision, it is incumbent upon the pre-trial Judge to bridge this gap in the law and to address the issue of the implementing provisions of this right, should the said accused declare to be indigent.
43. Another international tribunal, the International Criminal Court (“ICC”), had endeavoured to bridge this gap in the law. During the drafting of the regulations applicable before the ICC, the issue of granting “legal aid” to a self-represented accused arose. Accordingly, in the initial draft Regulations of the Registry of the ICC, it was proposed that the Registry of the ICC provide for the appointment of professional investigators and legal assistants to a self-represented accused. Although this provision was not adopted in the end, the fact remains that the regulations currently in force may be interpreted as providing for such a possibility.
44. Accordingly, Regulation 83(1) of the ICC Regulations of the Court provides that
Legal assistance paid by the Court shall cover all costs reasonably necessary as determined by the Registrar for an effective and efficient defence, including the remuneration of counsel, his or her assistants as referred to in regulation 68 and staff, expenditure in relation to the gathering of evidence, administrative costs, translation and interpretation costs, travel costs and daily subsistence allowances.
On the basis of Regulation 83(1) mentioned above and Regulation 119(2) of the Regulations of the Registry of the ICC, it appears therefore that “legal assistance” is not strictly contingent upon the assignment of counsel and would be allowed to a self-represented accused.
45. Based on this example, the pre-trial Judge considers that an accused representing himself without the assistance of counsel before an international court has the right to have associates paid by the international court subject to certain conditions.
B. Payment of Costs Incurred by the Accused in the Preparation and Presentation of His Defence
1. Ensuring a Fair Trial
49. The pre-trial Judge primarily must ensure that the rules for a fair trial are respected. Additionally, the fact that an accused represents himself or is represented by counsel, either assigned or appointed by him, must not affect the other rights arising from the fair trial requirements guaranteed by Article 21(4) of the Statute, including the right to have the necessary time and facilities to prepare his defence, and to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. Nevertheless, it is impracticable for an accused, who is detained at the Tribunal’s detention unit and represents himself, to go into the field in search of evidence crucial for the cross-examination of witnesses and to conduct investigations to find defence witnesses. These tasks are quite simply impossible for him to perform. Additionally, a fair trial requires that a team be constituted for this purpose.
50. Otherwise, an accused who claims to lack the means to pay such a team and still wishes, for reasons of his own, to represent himself, will therefore find himself forced to go to the trial with no other facilities to prepare his defence than the documents disclosed by the Prosecution under Rule 65 ter, 66 and 68 of the Rules. In a memorandum drafted at the request of the Registry, the United Nations Office of Legal Affairs considered that “the Registry’s reasoning entails that all accused who do not have financial means to ensure their own defence – for instance, to cover the expenses incurred for their own investigators or advisors – will be compelled to be represented by a defence counsel. It would mean that the exercise of the right of the accused to defend himself or herself in person – as enshrined in Article 21(4)(d) of the ICTY Statute – would be entirely dependent on the financial means available to him or her.” Similarly, the pre-trial Judge considers that the effective exercise of a right guaranteed by the Statute cannot be curtailed by the financial resources of an accused.
51. Under Article 21(4) of the Statute, all accused are entitled to the “minimum” guarantees set forth in this provision. As the rights enshrined in Article 21(4) are minimum rights, they are not an exhaustive list. In its Submissions, the Registry refers to national law and jurisprudence which tend to indicate that “the issues discussed in the scope of the provision of adequate facilities are purely of a technical nature.” The pre-trial Judge notes that these references are of little relevance in light of the complexity of the cases over which the Tribunal has jurisdiction. Additionally, it is entirely reasonable to think that guaranteeing a fair trial for an accused who claims indigence and who is self-represented before the Tribunal requires facilités/facilities which go beyond those necessary in a national setting.
2. Ensuring Equality of Arms
52. Second, with respect to the principle of equality of arms, the pre-trial Judge can only concur with the jurisprudence referred to by the Registry in its Submissions, in that the equality of arms does not require equality of resources but procedural equality, meaning that the parties must enjoy the same procedural guarantees and conditions during the trial. It is inconceivable that the financial situation of an accused should result in an inequality of arms. Therefore, in order to restore balance to the situation of a self-represented accused and to guarantee him “procedural equality”, it may be necessary to grant him more facilities and financial resources than those afforded to an accused who is represented by counsel. The pre-trial Judge must ensure that the Accused, who claims indigence, has sufficient means to examine or have examined the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him …
3. Ensuring the Proper Administration of Justice
53. Third, the pre-trial Judge has the duty to “[ensure] the proper administration of justice, a power that falls clearly within the primary, if not exclusive, responsibility of the Chamber.” The pre-trial Judge considers that this duty can be fulfilled only if a team of associates assists the Accused in preparing and presenting his defence at every stage of the proceedings.
54. It is crucial for a team of associates to assist the accused before, during and after the hearings. Prior to the hearings, such a team is necessary to communicate with the Registry or the Chamber in order to address administrative and organizational matters and to disclose to the Prosecution the documents which the Accused intends to present during cross-examination. During the hearings, it is necessary that the team be able to follow the proceedings and the English transcription in real time, and to organize visual aids if necessary. After hearings, all teams have a duty to check the court transcripts for accuracy and to prepare the presentation of defence evidence. All of these tasks cannot reasonably be accomplished by the Accused alone. The Registry acknowledged this in its Submissions noting that
it is conceivable that a self-represented accused who is in detention may need to be assigned an investigator and/or (an) expert(s), paid for by the Tribunal if the accused is indigent, to gather or verify facts or to provide an expert report respectively…
55. However, the pre-trial Judge agrees in part with the position of the Registry which considers it unimaginable that associates who draft the written submissions of the Accused be paid for carrying out the work of a counsel whereas the Accused has chosen to represent himself. By choosing to represent himself, the Accused accepts at a minimum the burden of drafting his submissions, as he has stated that he is qualified to carry out these tasks, considering his qualifications and title of professor of law. While the pre-trial Judge does not doubt the abilities of the Accused, he finds nevertheless that the recent written submissions drafted by the assistants of the Accused are more concise, better argued and reasoned than those previously filed. It is therefore in the interests of the proper administration of justice to succeed in ensuring that the associates of the Accused, who undeniably play a positive role in his defence, may be decently paid for the services they perform.
C. Implementing Provisions
56. Having established the principle of the absolute need to constitute a team in order to assist the Accused, who has chosen to represent himself, in the preparation and presentation of his defence, it is incumbent upon the Registry to take the specific steps to apply the principle after the pre-trial Judge has recalled certain guidelines. 
ICTY, Vojislav Šešelj case, Decision on Financing the Defence of the Accused, 30 July 2007, §§ 33–35, 38–45 and 49–56.
[emphasis in original]
International Criminal Tribunal for the former Yugoslavia
In the Krajišnik case, the accused, a member of the Bosnian Serb leadership during the armed conflict, was found guilty of a number of crimes against humanity, including, inter alia, persecution and extermination. In its judgment in 2009, the ICTY Appeals Chamber considered the right of an accused to be provided with adequate time for the preparation of his or her defence, stating:
As part of his right to a fair trial (Article 20(1) of the [1993 ICTY] Statute), an accused is entitled “to have adequate time and facilities for the preparation of his defence” (Article 21(4)(b) of the Statute). What constitutes “adequate time and facilities” cannot be assessed in the abstract, but will depend on the circumstances of the case. Further, “[w]hen considering an appellant’s submission regarding this right, the Appeals Chamber must assess whether the Defence as a whole, and not any individual counsel, was deprived of adequate time and facilities.” Nahimana case, Judgement on Appeal, § 220]. 
ICTY, Krajišnik case, Judgment on Appeal, 17 March 2009, § 80.
[footnote in original omitted]
Special Court for Sierra Leone
In the Sesay case before the SCSL, the accused Sesay and Kallon, senior commanders in the Revolutionary United Front (RUF), Junta and Armed Forces Revolutionary Council (AFRC)/RUF forces, and the accused Gbao, senior commander in the RUF and AFRC/RUF forces, were each charged with eight counts of crimes against humanity, eight counts of war crimes, and two counts of other serious violations of international humanitarian law. In its judgment in the case in 2009, the Trial Chamber stated:
318. … Article 17(4)(b) [of the 2002 Statute of the Special Court for Sierra Leone] provides that every accused has the right to adequate time and facilities for the preparation of his defence.
320. These provisions enshrine the right of an accused to adequately and effectively prepare his defence. As we held in our seminal decision on the Sesay Defence preliminary challenge to the form of the Indictment, in order for the Accused “to adequately and effectively prepare his defence, the Indictment must plead with sufficient specificity or particularity the facts underpinning the specific crimes.” [SCSL, Sesay case, Decision on Form of Indictment, § 6]
478. Pursuant to Article 18 of the Statute, every Accused has the right to a public judgement accompanied by a written reasoned opinion. Although in a case of this magnitude and complexity, a written reasoned opinion will necessarily be lengthy and complex, it is important that it is comprehensible to the public at large. Bearing this in mind, we recognise that cogency, coherency and conciseness are important qualities that the Chamber has endeavoured to employ. We have sought to make clear our reasons for finding evidence to be credible, as well as, and more importantly, which evidence we have relied upon to arrive at our Legal Findings. The Chamber recalls the guidance given by the ICTY Appeals Chamber on this issue:
With regard to the factual findings, the Trial Chamber is required only to make findings of those facts which are essential to the determination of guilt on a particular count. It is not necessary to refer to the testimony of every witness or every piece of evidence on the trial record. It is to be presumed that the Trial Chamber evaluated all the evidence presented to it, as long as there is no indication that the Trial Chamber completely disregarded any particular piece of evidence. [ICTY, Kvočka case, Judgement on Appeal, § 23]
483. The Appeals Chamber has confirmed that:
While it is preferable for the Trial Chamber to state its reasons for accepting the evidence of one witness over that of another when they are contradictory, the Trial Chamber is not obliged to refer to every piece of evidence on the trial record. Rather, it may only make findings of material facts that are essential to the determination of guilt in relation to a particular count. [SCSL, Brima case, Judgement on Appeal, § 268]
484. The ICTY Appeals Chamber also gave useful guidance in determining the level of detail required of a Trial Chamber in its written reasoned opinion regarding how the Trial Judges exercised their discretion to determine that testimony which they find credible, and that which they do not:
Considering the fact that minor inconsistencies commonly occur in witness testimony without rendering it unreliable, it is within the discretion of the Trial Chamber to evaluate it and to consider whether the evidence as a whole is credible, without explaining its decision in every detail. If the Trial Chamber did not refer to the evidence given by a witness, even if it is contradiction to the Trial Chamber’s finding, it is to be presumed that the Trial Chamber assessed and weighed the evidence, but found that the evidence did not prevent it from arriving at its actual findings [ICTY, Kvočka case, Judgement on Appeal, § 23]. 
SCSL, Sesay case, Judgment, 2 March 2009, §§ 318, 320, 478 and 483–484.
[footnotes in original omitted]
Special Court for Sierra Leone
In the Brima case before the SCSL, the three accused, all former non-commissioned officers in the Sierra Leone Army who became senior members of the Armed Forces Revolutionary Council (AFRC) that seized power from the elected Government of the Republic of Sierra Leone in May 1997, were convicted, inter alia, of the crimes against humanity of murder, extermination and enslavement, pursuant to Article 2 of the 2002 Statute of the Special Court for Sierra Leone. On the accused’s right to a fair trial, the Appeals Chamber stated in its judgment in 2008:
The [2002] Statute [of the Special Court for Sierra Leone] and Rules [of Procedure and Evidence of the Special Court for Sierra Leone] provide for an accused’s right to a fair trial. In particular, Article 17(4) of the Statute requires that an accused has “adequate time and facilities for the preparation of his or her defence and to communicate with counsel of his or her own choosing.” Equality of arms is a core element of the right to a fair trial. 
SCSL, Brima case, Judgment on Appeal, 22 February 2008, § 220.
[footnotes in original omitted]
Human Rights Committee
In its General Comment on Article 14 of the 1966 International Covenant on Civil and Political Rights in 2007, the Human Rights Committee stated:
10. The availability or absence of legal assistance often determines whether or not a person can access the relevant proceedings or participate in them in a meaningful way. While article 14 explicitly addresses the guarantee of legal assistance in criminal proceedings in paragraph 3 (d), States are encouraged to provide free legal aid in other cases, for individuals who do not have sufficient means to pay for it.
32. Subparagraph 3 (b) provides that accused persons must have adequate time and facilities for the preparation of their defence and to communicate with counsel of their own choosing. This provision is an important element of the guarantee of a fair trial and an application of the principle of equality of arms. In cases of an indigent defendant, communication with counsel might only be assured if a free interpreter is provided during the pre-trial and trial phase. What counts as “adequate time” depends on the circumstances of each case. If counsel reasonably feel that the time for the preparation of the defence is insufficient, it is incumbent on them to request the adjournment of the trial. A State party is not to be held responsible for the conduct of a defence lawyer, unless it was, or should have been, manifest to the judge that the lawyer’s behaviour was incompatible with the interests of justice. There is an obligation to grant reasonable requests for adjournment, in particular, when the accused is charged with a serious criminal offence and additional time for preparation of the defence is needed.
33. “Adequate facilities” must include access to documents and other evidence; this access must include all materials that the prosecution plans to offer in court against the accused or that are exculpatory. Exculpatory material should be understood as including not only material establishing innocence but also other evidence that could assist the defence (e.g. indications that a confession was not voluntary). In cases of a claim that evidence was obtained in violation of article 7 of the Covenant, information about the circumstances in which such evidence was obtained must be made available to allow an assessment of such a claim. If the accused does not speak the language in which the proceedings are held, but is represented by counsel who is familiar with the language, it may be sufficient that the relevant documents in the case file are made available to counsel.
34. The right to communicate with counsel requires that the accused is granted prompt access to counsel. Counsel should be able to meet their clients in private and to communicate with the accused in conditions that fully respect the confidentiality of their communications. Furthermore, lawyers should be able to advise and to represent persons charged with a criminal offence in accordance with generally recognised professional ethics without restrictions, influence, pressure or undue interference from any quarter.
37. Second, the right of all accused of a criminal charge to defend themselves in person or through legal counsel of their own choosing and to be informed of this right, as provided for by article 14, paragraph 3 (d), refers to two types of defence which are not mutually exclusive. Persons assisted by a lawyer have the right to instruct their lawyer on the conduct of their case, within the limits of professional responsibility, and to testify on their own behalf. At the same time, the wording of the Covenant is clear in all official languages, in that it provides for a defence to be conducted in person “or” with legal assistance of one’s own choosing, thus providing the possibility for the accused to reject being assisted by any counsel. This right to defend oneself without a lawyer is, however not absolute. The interests of justice may, in the case of a specific trial, require the assignment of a lawyer against the wishes of the accused, particularly in cases of persons substantially and persistently obstructing the proper conduct of trial, or facing a grave charge but being unable to act in their own interests, or where this is necessary to protect vulnerable witnesses from further distress or intimidation if they were to be questioned by the accused. However, any restriction of the wish of accused persons to defend themselves must have an objective and sufficiently serious purpose and not go beyond what is necessary to uphold the interests of justice. Therefore, domestic law should avoid any absolute bar against the right to defend oneself in criminal proceedings without the assistance of counsel.
38. Third, article 14, paragraph 3 (d) guarantees the right to have legal assistance assigned to accused persons whenever the interests of justice so require, and without payment by them in any such case if they do not have sufficient means to pay for it. The gravity of the offence is important in deciding whether counsel should be assigned “in the interest of justice” as is the existence of some objective chance of success at the appeals stage. In cases involving capital punishment, it is axiomatic that the accused must be effectively assisted by a lawyer at all stages of the proceedings. Counsel provided by the competent authorities on the basis of this provision must be effective in the representation of the accused. Unlike in the case of privately retained lawyers, blatant misbehaviour or incompetence, for example the withdrawal of an appeal without consultation in a death penalty case, or absence during the hearing of a witness in such cases may entail the responsibility of the State concerned for a violation of article 14, paragraph 3 (d), provided that it was manifest to the judge that the lawyer’s behaviour was incompatible with the interests of justice. There is also a violation of this provision if the court or other relevant authorities hinder appointed lawyers from fulfilling their task effectively.  
Human Rights Committee, General Comment No. 32 [Article 14: Right to Equality before Courts and Tribunals and to a Fair Trial], 23 August 2007, §§ 10, 32–34 and 37–38.
Human Rights Committee
In 1992, in its concluding observations on the report of Senegal, the Human Rights Committee rejected the argument that the provisions of the 1966 International Covenant on Civil and Political Rights should be interpreted against the background of the conditions prevailing in the country (a state of emergency) and expressed concern at provisions in legislation “particularly in so far as they allow detainees to be kept incommunicado during the first eight days following arrest and deprived of access to a lawyer for the period of arrest”. 
Human Rights Committee, Concluding observations on the report of Senegal, UN Doc. CCPR/C/79/Add.10, 28 December 1992, § 5.
Human Rights Committee
In its concluding observations on the third periodic report of the Sudan in 2007, the Human Rights Committee stated:
… [The Committee] also notes with concern that in actual fact the right of the detainee to have access to a lawyer … is often not respected. (arts. 7 and 9 of the [International Covenant on Civil and Political Rights])
The right of detainees to have access to a lawyer should be laid down in the Code of Criminal Procedure. 
Human Rights Committee, Concluding observations on the third periodic report of the Sudan, UN Doc. CCPR/C/SDN/CO/3, 29 August 2007, § 21.
[emphasis in original]
Human Rights Committee
In several cases, the Human Rights Committee found a violation of the right of defence because of lack of access to counsel during detention, including during incommunicado detention. 
Human Rights Committee, Sala de Tourón v. Uruguay, Views, 31 March 1981, § 12; Pietraroia v. Uruguay, Views, 27 March 1981, § 17; Wight v. Madagascar, Views, 1 April 1985, § 17; Lafuente Peñarrieta and Others v. Bolivia, Views, 2 November 1987, § 16.
Human Rights Committee
In several cases, the Human Rights Committee has stressed the need for free legal assistance where the interests of justice so require. This was not required in criminal proceedings concerning breach of traffic regulations, 
Human Rights Committee, O.F. v. Norway, Admissibility Decision, 26 October 1984, § 5.6.
but was found to be necessary in cases of murder trials, as well as appeals contesting the fairness of a trial. 
Human Rights Committee, Currie v. Jamaica, Views, 29 March 1994, § 13.2–13.4; Thomas v. Jamaica, Views, 3 November 1997, § 6.4.
Human Rights Committee
In its views in Little v. Jamaica in 1991, the Human Rights Committee held that the meaning of “adequate time” to prepare a defence would vary according to the circumstances and complexity of the case, but a few days would normally be deemed insufficient. 
Human Rights Committee, Little v. Jamaica, Views, 1 November 1991, § 8.3–8.4.
Human Rights Committee
In its views in Saldías López v. Uruguay in 1981, the Human Rights Committee found a violation of Article 14 (3)(d) of the 1966 International Covenant on Civil and Political Rights when an ex-officio defence attorney had been appointed for the accused against their will. 
Human Rights Committee, Saldías López v. Uruguay, Views, 29 July 1981, § 13; see also Celiberti de Casariego v. Uruguay, Views, 29 July 1981, § 11.
Human Rights Committee
In Evans v. Trinidad and Tobago in 2003, the Human Rights Committee held:
As to the claim that he was denied access to the courts in not being provided with legal aid to make a constitutional challenge on the issue of the length of the sentence imposed upon commutation, the Committee recalls its prior jurisprudence that the [1966 International Covenant on Civil and Political Rights] does not contain an express obligation as such for any State party to provide legal aid to individuals in all cases but only in the determination of a criminal charge where the interest of justice so require. The Committee is therefore of the view that the State party is not expressly required to provide legal aid outside the context of a criminal trial. As the author’s claim relates to the commutation of his sentence rather than the fairness of the trial itself, the Committee cannot find that there has been a violation of article 14, paragraph 1, of the Covenant, in this respect. 
Human Rights Committee, Evans v. Trinidad and Tobago, Views, 5 May 2003, § 6.6.
[emphasis in original]
Human Rights Committee
In Aliev v. Ukraine in 2003, the Human Rights Committee held:
7.2 First, the author alleges that he did not have the services of a counsel during his first five months of detention … Considering the nature of the case and questions dealt with during this period, particularly the author’s interrogation by police officers and the reconstruction of the crime, in which the author was not invited to participate, the Committee is of the view that the author should have had the possibility of consulting and being represented by a lawyer. Consequently, and in the absence of any relevant information from the State party, the Committee is of the view that the facts before it constitute a violation of article 14, paragraph 1, of the [1966 International Covenant on Civil and Political Rights].
7.3 Secondly, the author alleges that, subsequently, on 17 July 1997, the Supreme Court heard his case in his absence and in the absence of his counsel. The Committee notes that the State party has not challenged this allegation and has not provided any reason for this absence. The Committee finds that the decision of 17 July 1997 does not mention that the author or his counsel was present, but mentions the presence of a procurator. Moreover it is uncontested that the author had no legal representation in the early stages of the investigations. Bearing in mind the facts before it, and in the absence of any relevant observation by the State party, the Committee considers that due weight must be given to the author’s allegations. The Committee recalls its jurisprudence that legal representation must be available at all stages of criminal proceedings, particularly in cases in which the accused incurs capital punishment. Consequently, the Committee is of the view that the facts before it disclose a violation of article 14, paragraph 1, as well as a separate violation of article 14, paragraph 3 (d), of the Covenant. 
Human Rights Committee, Aliev v. Ukraine, Views, 18 September 2003, §§ 7.2–7.3.
Human Rights Committee
In Kurbanov v. Tajikistan in 2003, the Human Rights Committee stated:
During his detention from 5 May 2001 onwards, [Mr. Kurbanov] was, except for the last week starting on 23 July 2001, without the assistance of a lawyer. The Committee takes the view that the delay in presenting the charges to the detained author and in securing him legal assistance affected the possibilities of Mr. Kurbanov to defend himself, in a manner that constitutes a violation of article 14, paragraph 3 (a), of the [1966 International Covenant on Civil and Political Rights]. 
Human Rights Committee, Kurbanov v. Tajikistan, Views, 12 November 2003, § 7.3
Human Rights Committee
In Hruska v. Czech Republic in 2003, the Human Rights Committee stated:
The Committee recalls its jurisprudence to the effect that it does not consider that the requirement of legal representation before the highest national judicial instance is not based on objective and reasonable criteria. 
Human Rights Committee, Hruska v. Czech Republic, Inadmissibility Decision, 7 November 2003, § 4.2.
Human Rights Committee
In Arutyunyan v. Uzbekistan in 2004, the Human Rights Committee stated that the complainant alleged that:
her brother’s right to defence was violated, because once counsel of his choice was allowed to represent him, the latter was prevented from seeing him confidentially; counsel was allowed to examine the Tashkent City Court’s records only shortly before the hearing in the Supreme Court. In support of her allegations, the author produces a copy of the lawyer’s request for an adjournment, addressed to the Supreme Court on 17 December 1999; this stated that under different pretexts, he had been denied access to the Tashkent City Court’s records. This request was turned down by the Supreme Court. On appeal, counsel claimed that he was unable to meet privately with his client to prepare his defence; the Supreme Court failed to address this issue. In the absence of any pertinent observations from the State party on this claim, the Committee considers that article 14, paragraph 3 (d) [of the 1966 International Covenant on Civil and Political Rights] has been violated in the instant case. 
Human Rights Committee, Arutyunyan v. Uzbekistan, Views, 13 May 2004, § 6.3.
Human Rights Committee
In Smartt v. Guyana in 2004, the Human Rights Committee recalled its jurisprudence “that legal representation must be available at all stages of criminal proceedings, particularly in cases involving capital punishment”. 
Human Rights Committee, Smartt v. Guyana, Views, 19 August 2004, § 6.3.
Human Rights Committee
In Saidova v. Tajikistan in 2004, the Human Rights Committee held:
As to the alleged violation of article 14, paragraph 3 (b) [of the 1966 International Covenant on Civil and Political Rights], in that the author’s husband was legally represented only towards the end of the investigation and not by counsel of his own choice, with no opportunity to consult his representative, and that, contrary to article 14, paragraph 3 (d), Mr. Saidov was not informed of his right to be represented by a lawyer upon arrest, and that his lawyer was frequently absent during the trial, the Committee once more regrets the absence of a relevant State party explanation. It recalls its jurisprudence that, particularly in cases involving capital punishment, it is axiomatic that the accused must be effectively assisted by a lawyer … at all stages of the proceedings. In the present case, the author’s husband faced several charges which carried the death penalty, without any effective legal defence, although a lawyer had been assigned to him by the investigator. It remains unclear from the material before the Committee whether the author or her husband have requested a private lawyer, or have contested the choice of the assigned lawyer. However, and in the absence of any relevant State party explanation on this issue, the Committee reiterates that while article 14, paragraph 3 (d) does not entitle an accused to choose counsel free of charge, steps must be taken to ensure that counsel, once assigned, provides effective representation in the interest of justice. Accordingly, the Committee is of the view that the facts before it reveal a violation of Mr. Saidov’s rights under article 14, paragraphs 3 (b) and (d), of the Covenant. 
Human Rights Committee, Saidova v. Tajikistan, Views, 20 August 2004, § 6.8.
Human Rights Committee
In Khomidova v. Tajikistan in 2004, the Human Rights Committee held:
The Committee has noted the author’s claims that her son was legally represented only one month after being charged with several crimes and all meetings between him and the lawyer subsequently assigned by the investigation were held in [the] investigators’ presence, in violation of article 14, paragraph 3 (b) [of the 1966 International Covenant on Civil and Political Rights]. The Committee considers that the author’s submissions concerning the time and conditions in which her son was assisted by a lawyer before the trial adversely affected the possibilities of the author’s son to prepare his defence. In the absence of any explanations by the State party, the Committee is of the view that the facts before it reveal a violation of Mr. Khomidov’s rights under article 14, paragraph 3 (b), of the Covenant. 
Human Rights Committee, Khomidova v. Tajikistan, Views, 25 August 2004, § 6.4.
Human Rights Committee
In Rayos v. Philippines in 2004, the Human Rights Committee held:
With respect to the claim of a violation of article 14, paragraph 3 (b) [of the 1966 International Covenant on Civil and Political Rights], as the author was not granted sufficient time to prepare his defence and communicate with counsel, the Committee notes that the State party does not contest this claim. Since the author was only granted a few moments each day during the trial to communicate with counsel, the Committee finds a violation of article 14, paragraph 3 (b), of the Covenant. 
Human Rights Committee, Rayos v. Philippines, Views, 7 September 2004, § 7.3.
Human Rights Committee
In Pagdayawon v. Philippines in 2004, the Human Rights Committee held:
As to the author’s uncontested claim that he did not have access to a lawyer during his initial period of detention, and that during both periods of detention, he was not informed of his right to legal assistance, the Committee finds a violation of article 14, paragraph 3(d), of the [1966 International Covenant on Civil and Political Rights]. 
Human Rights Committee, Pagdayawon v. Philippines, Views, 8 December 2004, § 5.6.
Human Rights Committee
In Aliboev v. Tajikistan in 2005, the Human Rights Committee stated:
The Committee notes the author’s claim that her husband was not represented by a lawyer until after his indictment, i.e. during a period when he was subjected to beatings and torture, and that the State party has not refuted this allegation. The Committee recalls its jurisprudence that, particularly in capital cases, it is axiomatic that the accused must be effectively assisted by a lawyer at all stages of the proceedings. In the present case, the author’s husband faced capital charges, and was without any legal defence during the preliminary investigation. It remains unclear from the material before the Committee whether the author or her husband requested legal assistance, or sought to engage a private lawyer. The State party, however, has not presented any explanation on this issue. Accordingly, the Committee is of the view that the facts before it reveal a violation of Mr. Aliboev’s right under article 14, paragraphs 3 (d), of the [1966 International Covenant on Civil and Political Rights]. 
Human Rights Committee, Aliboev v. Tajikistan, Views, 16 November 2005, § 6.4.
Human Rights Committee
In Boimurodov v. Tajikistan in 2005, the Human Rights Committee stated:
[T]he Committee must give due weight to the author’s allegation of a violation of his son’s right under article 14(3)(b) [of the 1966 International Covenant on Civil and Political Rights] to communicate with counsel of his choosing. In the absence of any explanation from the State party, the Committee considers that the facts as presented to it regarding the author’s son being held incommunicado for a period of 40 days reveal a violation of this provision of the Covenant. 
Human Rights Committee, Boimurodov v. Tajikistan, Views, 16 November 2005, § 7.3.
Human Rights Committee
In Bee and Obiang v. Equatorial Guinea in 2005, the Human Rights Committee held:
The Committee takes note of the authors’ complaint that the alleged victims were not notified of the grounds for the charges against them until two days before the trial, depriving them of sufficient time to prepare their defence and making it impossible for them to select their defence lawyers, that the court was partially composed of military personnel and that they were forcibly compelled to sign their confessions. In the absence of a reply from the State party contradicting these allegations, the Committee finds that the facts described disclose a violation of article 14, paragraphs 1 and 3 (a), (b), (d) and (g), in conjunction with article 2, paragraph 3 (a) and (b) of the [1966 International Covenant on Civil and Political Rights]. 
Human Rights Committee, Bee and Obiang v. Equatorial Guinea, Views, 30 November 2005, § 6.3.
Human Rights Committee
In Chan v. Guyana in 2006, the Human Rights Committee held:
6.2 As regards the time available for the preparation of the author’s defense, the Committee recalls that the author’s right under article 14, paragraph 3 (d) [of the 1966 International Covenant on Civil and Political Rights], to have legal assistance assigned to him entitled him to effective legal representation, including adequate time and facilities for the preparation of his defence, as guaranteed in article 14, paragraph 3 (b). While noting that the trial was adjourned for only two week days at the request of the author’s counsel, the Committee recalls that counsel was assigned to the author by the State party. It further recalls that the conduct of a defence lawyer may be attributed to a State party, if it was manifest to the judge that such conduct was incompatible with the interests of justice.
6.3 The Committee considers that in a capital case, where the defence lawyer is absent on the first day of the trial, when he is being appointed as legal aid counsel for the accused and, through his representative, requests adjournment of the trial, the Court must ensure that such adjournment provides the accused with sufficient time to prepare his defence together with his lawyer. It should have been manifest to the judge in a capital case that counsel’s request for an adjournment of the trial for only two week days, during which he was engaged in another case, was not compatible with the interests of justice, since it did not provide the author with adequate time and facilities to prepare his defence. In the light of this and in the absence of an explanation by the State party, the Committee concludes that the author was not effectively represented at trial, in violation of article 14, paragraph 3 (b) and (d), of the Covenant. 
Human Rights Committee, Chan v. Guyana, Views, 23 January 2006, §§ 6.2–6.3.
Human Rights Committee
In Correia de Matos v. Portugal in 2006, in which the author claimed that he had not been permitted to defend himself in a court case and had thus been denied a fair trial, the Human Rights Committee held:
7.3 The Committee notes that article 14, paragraph 3 (d), of the [1966 International Covenant on Civil and Political Rights] provides that everyone accused of a criminal charge shall be entitled “to defend himself in person or through legal assistance of his own choosing”. The two types of defence are not mutually exclusive. Persons assisted by a lawyer retain the right to act on their own behalf, to be given a hearing, and to state their opinions on the facts of the case. At the same time, the Committee considers that the wording of the Covenant is clear in all official languages, in that it provides for a defence to be conducted in person “or” with legal assistance of one’s own choosing, taking as its point of departure the right to conduct one’s own defence. In fact, if an accused person had to accept an unwanted counsel whom he does not trust he may no longer be able to defend himself effectively as such counsel would not be his assistant. Thus, the right to conduct one’s own defence, which is a cornerstone of justice, may be undermined when a lawyer is imposed against the wishes of the accused.
7.4 The right to defend oneself without a lawyer is not absolute, however. Notwithstanding the importance of the relationship of trust between accused and lawyer, the interests of justice may require the assignment of a lawyer against the wishes of the accused, particularly in cases of a person substantially and persistently obstructing the proper conduct of trial, or facing a grave charge but being unable to act in his own interests, or where it is necessary to protect vulnerable witnesses from further distress if the accused were to question them himself. However, any restriction of the accused’s wish to defend himself must have an objective and sufficiently serious purpose and not go beyond what is necessary to uphold the interests of justice.
7.5 The Committee considers that it is the task of the competent courts to assess whether in a specific case the assignment of a lawyer is necessary in the interests of justice, inasmuch as a person facing criminal prosecution may not be in a position to make a proper assessment of the interests at stake, and thus defend himself as effectively as possible. However, in the present case, the legislation of the State party and the case law of its Supreme Court provide that the accused can never be freed from the duty to be represented by counsel in criminal proceedings, even if he is a lawyer himself, and that the law takes no account of the seriousness of the charges or the behaviour of the accused. Moreover, the State party has not provided any objective and sufficiently serious reasons to explain why, in this instance of a relatively simple case, the absence of a court-appointed lawyer would have jeopardized the interests of justice or why the author’s right to self-representation had to be restricted. The Committee concludes that the right to defend oneself in person, guaranteed under article 14, paragraph 3 (d), of the Covenant has not been respected. 
Human Rights Committee, Correia de Matos v. Portugal, Views, 18 April 2006, §§ 7.3–7.5.
Human Rights Committee
In Sultanova v. Uzbekistan in 2006, the Human Rights Committee held:
As to the author’s claim that her sons were denied access to a lawyer of their choosing during the pre-trial investigation and the trial, the Committee also notes the author’s contention that she was not informed of the date of her sons’ trial and thus could not hire an independent lawyer to defend them at the trial. Their lawyer, subsequently hired by the author, was twice refused permission to see his clients after they were sentenced to death. The Committee recalls its jurisprudence that, particularly in cases involving capital punishment, it is axiomatic that the accused is effectively assisted by a lawyer at all stages of the proceedings. In the circumstances of the case, and in the absence of pertinent explanations from the State party, the Committee considers that the legal assistance did not meet the required threshold of effectiveness. Therefore, the information before the Committee discloses a violation of article 14, paragraph 3 (b) and (d) [of the 1966 International Covenant on Civil and Political Rights]. 
Human Rights Committee, Sultanova v. Uzbekistan, Views, 19 April 2006, § 7.4.
Human Rights Committee
In Shukurova v. Tajikistan in 2006, the Human Rights Committee stated:
On the claim that Dovud and Sherali Nazriev were unrepresented for a long period, and that once they were legally represented, their lawyers were prevented from meeting with them, the State party affirms that when Dovud was indicted on 29 May 2000, he waived his right to be represented; when he was charged with serious crimes, he was given an ex-officio lawyer; Sherali did not request to be represented upon arrest, but was assigned a lawyer on 19 March 2000, when charged with serious crimes. The Committee recalls that, particularly in cases involving capital punishment, it is axiomatic that the accused is effectively assisted by a lawyer at all stages of the proceedings. It concludes that in the circumstances of the present case, the material before it reveals a violation of the author’s husband’s and his brother’s rights under article 14, paragraph 3 (b), and (d), of the [1966 International Covenant on Civil and Political Rights], in that they were not provided with the opportunity adequately to prepare their defence, and were not legally represented at the initial stage of the investigation. 
Human Rights Committee, Shukurova v. Tajikistan, Views, 26 April 2006, § 8.5.
Human Rights Committee
In Becerra Barney v. Colombia in 2006, the Human Rights Committee held:
The Committee takes note of the author’s claims that he was tried and convicted in first instance and on appeal by courts made up of faceless judges, without the due safeguards of a public hearing and adversarial proceedings, and in particular that he was not allowed to be present and defend himself during the trial, either personally or through his representative, and had no opportunity to question the prosecution witness. It points out that, to satisfy the requirements of the right to defence guaranteed under article 14, paragraph 3, of the [1966 International Covenant on Civil and Political Rights], all criminal proceedings must allow the accused the right to an oral hearing at which he or she can appear in person or be represented by legal counsel, submit such evidence as he or she deems relevant and question the witnesses. Bearing in mind that the author was not given such a hearing during the proceedings which culminated in his conviction and sentencing, the Committee concludes that his right to a fair trial as established in article 14 of the Covenant was violated. 
Human Rights Committee, Becerra Barney v. Colombia, Views, 10 August 2006, § 7.2.
Human Rights Committee
In Larrañaga v. Philippines in 2006, the Human Rights Committee held:
7.5 … The Committee considers that in a capital case, when counsel for the defendant requests an adjournment because he was not given enough time to acquaint himself with the case, the court must ensure that the defendant is given an opportunity to prepare his defence. In the instant case, both the author’s appointed and chosen counsel should have been granted an adjournment. In the circumstances, the Committee finds a violation of article 14, paragraph 3 (b) and (d), of the [1966 International Covenant on Civil and Political Rights].
7.6 As to the author’s representation before the trial court, the Committee reiterates that it is axiomatic that legal representation must be made available in capital cases. In the instant case, it is uncontested that counsel was assigned to the author when his previous counsel was found guilty of contempt of court and jailed. From the material before the Committee, it is clear that the author did not wish his court-appointed counsel to represent him and requested an adjournment to hire a new counsel, which he had the means to do. In the circumstances, and bearing in mind that this is a case involving the death penalty, the trial court should have accepted the author’s request for a different counsel, even if this entailed an adjournment of the proceedings. To the extent that the author was denied effective representation by counsel of his own choosing and that this issue was raised before the Supreme Court which failed to correct it, the requirements of article 14, paragraph 3(d), have not been met. 
Human Rights Committee, Larrañaga v. Philippines, Views, 14 September 2006, §§ 7.5–7.6.
Human Rights Committee
In Chikunova v. Uzbekistan in 2007, the Human Rights Committee held:
The author has claimed that contrary to the requirements of national law, her son was only provided with a lawyer on 19 April 1999, i.e. two days after his arrest. He could meet with this lawyer only once, and in the presence of investigators. While the author’s son had a privately hired lawyer since 17 June 1999, that lawyer was only allowed to act after 13 August 1999, once the preliminary investigation had ended. The State party has not presented comments on these allegations. In the circumstances, due weight must be given to the author’s allegations. The Committee recalls its jurisprudence that particularly in cases involving capital punishment, it is axiomatic that the accused is effectively assisted by a lawyer at all stages of the proceedings. In the circumstances of the present case, the Committee concludes that the author’s son’s rights under article 14, paragraph 3 (b) and (d) [of the 1966 International Covenant on Civil and Political Rights], were violated. 
Human Rights Committee, Chikunova v. Uzbekistan, Views, 3 May 2007, § 7.4.
[emphasis in original]
Human Rights Committee
In Karimov and Nursatov v. Tajikistan in 2007, the Human Rights Committee held:
Both authors invoke violations of article 14, paragraph 3 (b) and (d) [of the 1966 International Covenant on Civil and Political Rights]. The first author has claimed violations of Karimov’s right to defence as although he was assigned a lawyer at the beginning of the preliminary investigation, this lawyer only occasionally attended the investigation hearings, to the point that a lawyer was hired privately to represent his son. Mr. Nursatov claims that his brother Askarov was not given a lawyer at the beginning of the investigation, although he risked the death sentence; when he was assigned an ex-officio lawyer, this lawyer was ineffective; and that the lawyer hired privately by his family was later forced to withdraw from the case. The State party has not refuted these allegations; in the circumstances the Committee concludes that they, since adequately substantiated, must be given due weight. The Committee recalls its jurisprudence that particularly in cases involving capital punishment, it is axiomatic that the accused is effectively assisted by a lawyer at all stages of the proceedings. In the circumstances of the present case, the Committee concludes that Mr. Karimov’s and Askarov’s rights under article 14, paragraph 3 (b) and (d), were violated. 
Human Rights Committee, Karimov and Nursatov v. Tajikistan, Views, 3 May 2007, § 7.5.
African Commission for Human and Peoples’ Rights
In a resolution adopted in 1992 on the right to recourse and fair trial, the African Commission for Human and Peoples’ Rights considered that the right to fair trial included, inter alia:
In the determination of charges against individuals, the individual shall be entitled in particular to:
i) Have adequate time and facilities for the preparation of their defence and to communicate in confidence with counsel of their choice. 
African Commission for Human and Peoples’ Rights, Eleventh Session, Tunis, 2–9 March 1992, Resolution on the Right to Recourse and Fair Trial, § 2(e)(i).
African Commission for Human and Peoples’ Rights
In its decision in Constitutional Rights Project v. Nigeria (87/93) in 1995, the African Commission for Human and Peoples’ Rights held:
The communication alleges that during the trials the defense counsel for the complainants was harassed and intimidated to the extent of being forced to withdraw from the proceedings. In spite of this forced withdrawal of counsel, the tribunal proceeded to give judgment in the matter, finally sentencing the accused to death. The Commission finds that defendants were deprived of their right to defense, including the right to be defended by counsel of their choice, [which constitutes a] violation of [Article 7(1)(c) of the 1981 African Charter on Human and Peoples’ Rights]. 
African Commission for Human and Peoples’ Rights, Constitutional Rights Project v. Nigeria (87/93), Decision, 13–22 March 1995, § 9.
African Commission for Human and Peoples’ Rights
In its decision in Avocats Sans Frontières v. Burundi (231/99) in 2000, the African Commission for Human and Peoples’ Rights emphatically recalled:
The right to legal assistance is a fundamental element to the right to fair trial. Moreso where the interests of justice demand it. [The Commission] holds the view that in the case under consideration, considering the gravity of the allegations brought against the accused and the nature of the penalty faced [i.e. death penalty], it was in the interest of Justice for him to have benefit of the assistance of a lawyer at each stage of the case. 
African Commission for Human and Peoples’ Rights, Avocats Sans Frontières v. Burundi (231/99), Decision, 23 October–6 November 2000, § 30.
African Commission for Human and Peoples’ Rights
In its decision in Civil Liberties Organisation and Others v. Nigeria (218/98) in 2001, the African Commission for Human and Peoples’ Rights stated, with respect to Article 7(1)(c) of the 1981 African Charter on Human and Peoples’ Rights:
27. It is our view that the provisions of Article 7 should be considered non-derogable providing as they do the minimum protection to citizens and military officers alike especially under an unaccountable, undemocratic military regime …
28. It is alleged that in contravention of Article 7(1)(c) of the Charter, the convicted persons were not given the opportunity to be represented and defended by counsel of their choice, but rather that junior military lawyers were assigned to them and their objections were overruled. The fairness of the trial is critical if justice is to be done. For that especially in serious cases, which carry the death penalty, the accused should be represented by a lawyer of his choice. The purpose of this provision is to ensure that the accused has confidence in his legal counsel. Failure to provide for this may expose the accused to a situation where they will not be able to give full instructions to their counsel for lack of confidence.
29. Besides, it is desirable that in cases where the accused are unable to afford legal counsel, that they be represented by counsel at state expense. Even in such cases, the accused should be able to choose out of a list the preferred independent counsel “not acting under the instructions of government but responsible only to the accused”. The Human Rights Committee also prescribes that the accused person must be able to consult with his lawyer in conditions which ensure confidentiality of their communications. Lawyers should be able to counsel and to represent their clients in accordance with established professional standards without any restrictions, influences, pressures or undue interference from any quarter …
30. The right to fair trial is essential for the protection of all other fundamental rights and freedoms …
31. The assignment of military lawyers to accused persons is capable of exposing the victims to a situation of not being able to communicate, in confidence, with counsel of their choice. The Commission therefore finds the assignment of military counsel to the accused persons, despite their objections, and especially in a criminal proceeding which carries the ultimate punishment a breach of Article 7(1)(c) [of the 1981 African Charter on Human and Peoples’ Rights]. 
African Commission for Human and Peoples’ Rights, Civil Liberties Organisation and Others v. Nigeria (218/98), Decision, 23 April–7 May 2001, §§ 27–31.
European Commission of Human Rights
In its decision in Ensslin, Baader and Raspe v. FRG in 1978, the European Commission of Human Rights held that it was permissible to bar a particular lawyer from representing an accused because of his support for a criminal organization to which the accused belonged and in circumstances in which a number of other lawyers nominated by the accused were permitted to act. 
European Commission of Human Rights, Ensslin, Baader and Raspe v. FRG, Decision, 8 July 1978, §§ 25 and 57.
European Commission of Human Rights
In its decision in the Can case in 1984, the European Commission of Human Rights explained that the right of the accused to “adequate facilities” under the 1950 European Convention on Human Rights implied that:
The substantive defence activity on his behalf may comprise everything which is “necessary” to prepare the main trial … The accused must have the opportunity to organise his defence in an appropriate way and without restriction as to the possibility to put all relevant defence arguments before the trial court. 
European Commission of Human Rights, Can case, Decision, 12 July 1984, § 53.
The European Commission of Human Rights further stated that “to subject the defence counsel’s contacts with the accused to supervision of the court” is in principle incompatible with the right to effective assistance by a lawyer as guaranteed by the 1950 European Convention on Human Rights. It added:
This does not mean, however, that the right to free contact with the defence counsel must be granted under all circumstances and without any exceptions. Any restrictions in this respect must however remain an exception to the general rule, and therefore need to be justified by the special circumstances of the case. 
European Commission of Human Rights, Can case, Decision, 12 July 1984, § 57.
European Court of Human Rights
In its judgment in the Pakelli case in 1983, the European Court of Human Rights reaffirmed that free legal assistance must be given if the accused does not have sufficient means to pay counsel and if the interests of justice so require. In this case, one of the grievances of the accused related to the application of a new rule of criminal procedure and therefore the presence of counsel was necessary. 
European Court of Human Rights, Pakelli case, Judgment, 25 April 1983, §§ 30–40.
European Court of Human Rights
In its judgment in the Campbell and Fell case in 1984, the European Court of Human Rights observed that the “privileged contact prior to the commencement of litigation may be just as important as privileged contact after proceedings have been instituted”. 
European Court of Human Rights, Campbell and Fell case, Judgment, 28 June 1984, § 159.
European Court of Human Rights
In its judgment in Quaranta v. Switzerland in 1991, the European Court of Human Rights, considering that the case concerned the possibility of up to three years’ imprisonment, which was severe, and that the personality of the accused was such that the lack of counsel made it impossible for him to plead his cause adequately, stated:
27. … The right of an accused to be given, in certain circumstances, free legal assistance constitutes one aspect of the notion of a fair trial in criminal proceedings …
32. In order to determine whether the “interests of justice” required that the applicant receive free legal assistance, the Court will have regard to various criteria …
33. In the first place, consideration should be given to the seriousness of the offence … and the severity of the sentence which [the accused] risked …
34. An additional factor is the complexity of the case. 
European Court of Human Rights, Quaranta v. Switzerland, Judgment, 24 May 1991, §§ 27 and 32–34.
European Court of Human Rights
In its judgment in the Imbrioscia v. Switzerland case in 1993, the European Court of Human Rights stated, with respect to Article 6(3)(c) of the 1950 European Convention on Human Rights:
33. … [The applicant] inferred that in order to be effective, the right to defend oneself must cover not only the trial, but also the preceding interrogations by the police and the phase which took place before the district prosecutor.
36. The Court cannot accept the Government’s first submission without qualification. Certainly the primary purpose of Article 6 [1950 European Convention on Human Rights] as far as criminal matters are concerned is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, but it does not follow that the Article (art. 6) has no application to pre-trial proceedings. The “reasonable time” mentioned in [Article 6(1)], for instance, begins to run from the moment a “charge” comes into being, within the autonomous, substantive meaning to be given to that term. 
European Court of Human Rights, Imbrioscia v. Switzerland, Judgment, 24 November 1993, §§ 33 and 36.
European Court of Human Rights
In its judgment in Averill v. UK in 2000, the European Court of Human Rights found that the “concept of fairness” enshrined in Article 6 of the 1950 European Convention on Human Rights required that legal assistance be accessible even “at the initial stages of police interrogation”. 
European Court of Human Rights, Averill v. UK, Judgment, 6 June 2000, § 57.
Inter-American Commission on Human Rights
In a case concerning Nicaragua in 1989, the Inter-American Commission on Human Rights considered the issue of adequacy of time to prepare a defence. The Commission inferred from the shortness of the period during which the accused had been detained and tried that he had not been accorded adequate time for the preparation of his defence. 
Inter-American Commission on Human Rights, Case 10.198 (Nicaragua), Resolution, 29 September 1989, § 9 .
Inter-American Court of Human Rights
In its advisory opinion in the Exceptions to the Exhaustion of Domestic Remedies case in 1990, the Inter-American Court of Human Rights stated:
25. … If a person refuses or is unable to defend himself personally, he has the right to be assisted by counsel of his own choosing. In cases where the accused neither defends himself nor engages his own counsel within the time period established by law, he has the right to be assisted by counsel provided by the state, paid or not as the domestic law provides. To that extent the Convention guarantees the right to counsel in criminal proceedings. But since it does not stipulate that legal counsel be provided free of charge when required, an indigent would suffer discrimination for reason of his economic status if, when in need of legal counsel, the state were not to provide it to him free of charge.
26. Article 8 must, then, be read to require legal counsel only when that is necessary for a fair hearing. Any state that does not provide indigents with such counsel free of charge cannot, therefore, later assert that appropriate remedies existed but were not exhausted.
27. Even in those cases in which the accused is forced to defend himself because he cannot afford legal counsel, a violation of Article 8 of the [1969 American Convention on Human Rights] could be said to exist if it can be proved that the lack of legal counsel affected the right to a fair hearing to which he is entitled under that Article. 
Inter-American Court of Human Rights, Exceptions to the Exhaustion of Domestic Remedies case, Advisory Opinion, 10 August 1990, §§ 25–27.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces the rule that the courts must respect “the generally recognized principles of regular judicial procedure, which include … the right to fair trial including means of defence”. 
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 202(a).
Turku Declaration of Minimum Humanitarian Standards
The Turku Declaration of Minimum Humanitarian Standards, adopted by an expert meeting convened by the Institute for Human Rights of Åbo Akademi University in Turku/Åbo, Finland in 1990, provides that “unacknowledged detention” shall remain prohibited. The Declaration also provides a list of the minimum judicial guarantees, including: “The procedure … shall afford the accused before and during his or her trial all the necessary rights and means of defence.” 
Turku Declaration of Minimum Humanitarian Standards, adopted by an expert meeting convened by the Institute for Human Rights, Åbo Akademi University, Turku/Åbo, 30 November–2 December 1990, Articles 4(2) and 9(a), IRRC, No. 282, 1991, pp. 331–332 and 334.