Key facts of the case:
9. The applicant is a lawyer by training and an auditor by profession. From 1993 onwards, he was no longer authorised to practise as a lawyer. By a decision of the Bar Council of 24 September 1993, the applicant was suspended from the roll, as the exercise of the profession of lawyer was considered to be incompatible with his practising as an auditor. This decision was published in the Official Gazette in June 2000. When the applicant ceased his activity as an auditor in April 2016, he continued to be suspended from the Bar Council’s roll until at least the end of 2016 as the result of a disciplinary sanction imposed on him for having practised as a lawyer while not being authorised to do so. 10. On 28 February 2008, in the context of a set of civil proceedings in which he was nevertheless acting as a lawyer, the applicant criticised the decisions taken by the judge hearing the case, saying that they were not worthy of a judge and that a judge could not lie or omit the truth in the exercise of his functions. The judge in question filed a complaint for insult with the public prosecutor’s office. It is not clear from the material before the Court on what basis the applicant was acting as a lawyer in the context of those proceedings given the suspension from the roll referred to above.
Outcome of the case:
VIII. Conclusion (§§ 81-82)
81. When the letter and the spirit of Article 6 § 3 (c) of the Convention coincide as exactly as they do with regard to the question of self-representation, it ill behoves a court to engage in contortions to thwart both. That contortionist exercise is further discredited if the Convention is read in the light of the prevailing consensus in international law and the domestic practices of Contracting States.
82. This case proved to be more controversial than it might first have appeared. A literally divided Court took the path of least resistance and confirmed the respondent Government’s stance. But the divide within this Court reflects two radically different perspectives of criminal procedure and the rights of the defence. In this regard, this judgment heralds a return to the biases of the tormented black past of Europe, those biases that categorised defendants as objects in the hands of the almighty State, which could always dictate what was in their interests, even against their own will.
JOINT DISSENTING OPINION OF JUDGES PEJCHAL AND WOJTYCZEK
1. We respectfully disagree with the view of our colleagues that Article 6 §§ 1 and 3 (c) of the Convention has not been violated in the instant case.
2. The case raises the question of the purpose of the procedural guarantees. The majority expressed the following view in this respect (see paragraph 120 of the judgment): “The minimum rights listed in Article 6 § 3, which exemplify the requirements of a fair trial in respect of typical procedural situations which arise in criminal cases, are not aims in themselves: their intrinsic aim is always to contribute to ensuring the fairness of the criminal proceedings as a whole (see Ibrahim and Others, cited above, § 251 with further references).” We agree with the view that procedural law is instrumental in relation to substantive law and is the tool for implementing substantive legal rules. One of the main aims of any legal proceedings is to produce substantially just outcomes. However, the role of procedural law is not limited to guaranteeing substantive justice. Procedural law also has autonomous aims and serves self-standing values which include human dignity, physical integrity, freedom, personal autonomy and procedural justice. It is obvious that the right to defend oneself is an essential element of a fair trial. However, the purpose of the right to defend oneself is not limited to influencing the outcome of a criminal trial. The Convention rights should be viewed as a system and not as stand-alone guarantees that may be applied in isolation from each other. Article 6 § 3 should be read not only in the context of the other paragraphs of Article 6 but also against the backdrop of other Convention provisions and especially Article 3, Article 5 and Article 8. The right to defend oneself is also the right to defend oneself against preventive measures taken during an investigation, especially against remand custody and other restrictions on personal freedom. One of its aims is to minimise the scope and the intensity of preventive measures taken at the pre-trial stage and pending trial, such as remand custody. The rights guaranteed under Article 6 § 3 are therefore closely connected with the rights guaranteed by Article 5 and Article 8. A person charged with a criminal offence may also face the risk of ill-treatment and may have to defend himself against such threats. In this context, the right to defend oneself and the right of access to a lawyer from the moment of the first questioning by the investigative authorities are also an important safeguard against ill-treatment by State officials, and especially the police and prison authorities. It should therefore be regarded as part of States’ obligations under Article
3. Defence may also be necessary against the press, who may be tempted to stigmatise the accused as the perpetrator, thereby affecting his reputation and privacy. In this context, restrictions upon the right to defend oneself have to be assessed not only from the viewpoint of Article 6 but also from the perspective of other provisions of the Convention, especially Articles 3, 5 and 8. 3. Article 6 § 1 sets forth the standards of procedural justice by using the terms of “fair” hearing in the English version and “cause entendue équitablement” in the French version. This general requirement of procedural justice is further specified in respect of criminal proceedings in paragraphs 2 and 3 of Article 6, and includes the right to defend oneself in person or through legal assistance of one’s own choosing. A hearing that is fair and the right to defend oneself presuppose the right to be heard, which means not only the “right to speak” but also the “right to act” in the proceedings. The accused is entitled not only to present his own version of events but also to participate actively and to perform acts which produce legal effects in the proceedings. The legal subjectivity of a person is the first precondition of procedural fairness. In other words, procedural fairness presupposes the recognition of the person concerned as a legal subject, and every mentally competent person should enjoy full legal capacity in proceedings. A trial cannot be fair if the accused is just an object of the procedure and not an active subject who is able not only to present his views but also to participate actively by exercising his procedural rights in person. Very often defence in a legal trial requires making fundamental choices: whether to plead guilty to some or all of the charges, to plead not guilty or to enter a plea bargain; whether to tell the truth or to lie, and in which way; whether to contest the impartiality of the judges, and so on. Those choices, which presuppose carefully weighing conflicting values and different risks, may have a decisive impact on the future of the accused. A lawyer may help the person concerned by identifying possible defence strategies, their prospects of success and the risks incurred, but he cannot personally bear the consequences of the choice. The accused bears all the consequences of those choices and therefore can never be deprived of the freedom to decide about his own future. We regret that the majority decided to leave these fundamental issues completely unaddressed.
4. The Court has recently developed its case-law under Article 8, stressing the importance of personal autonomy as protected by that provision (see, for instance, the judgments in the cases of Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002-III, and Bărbulescu v. Romania, [GC], no. 61496/08, § 70, ECHR 2017 (extracts)). Personal autonomy should be protected in all contexts, including in the context of criminal proceedings. The right to defend oneself, which is protected under Article 6, and the right to individual autonomy, protected under Article 8, overlap to a certain extent and reinforce each other. They both require that the accused can determine freely how he wishes to defend himself in criminal proceedings. The Court, as master of the legal characterisation of the facts, should have communicated the complaint not only under Article 6 but also under Article 8 of the Convention. We note in this context that the US Supreme Court expressed the following views (Faretta v. California, (1975) No. 73-5772, 30 June 1975, opinion of the Supreme Court, delivered by Justice Stewart in which Douglas, Brennan, White, Marshall, and Powell, JJ., joined): “In the long history of British criminal jurisprudence, there was only one tribunal that ever adopted a practice of forcing counsel upon an unwilling defendant in a criminal proceeding. The tribunal was the Star Chamber. ... 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. Moreover, it is not inconceivable that in some rare instances, the defendant might in fact present his case more effectively by conducting his own defense. Personal liberties are not rooted in the law of averages. The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of ‘that respect for the individual which is the lifeblood of the law’. Illinois v. Allen, 397 U.S. 337, 350 -351 (Brennan, J., concurring) [422 U.S. 806, 835].” We agree with this approach.
5. The Convention interpretation should observe the customary rules of treaty interpretation codified in the Vienna Convention on the Law of Treaties. The point of departure is the letter of the Convention. It is true that the wording of Article 6 § 3 is not unequivocal. This provision guarantees everyone the right to “defend himself”. The right to a defence may be exercised “in person or through legal assistance”. The object of the right enshrined in Article 6 § 3 (c) is defined in the following terms: “to defend himself in person or through legal assistance of his own choosing”. We would like to stress in this context that the formulation contained in this provision is not a logical disjunction with two rights as operands. The text does not refer to “the right to defend himself in person or the right to defend himself through legal assistance”. The wording in question defines the object (the content) of a single right and enumerates the possible means of its exercise: it is the right to defend oneself in different ways listed in this provision. We note furthermore that coordinating conjunctions in natural language cannot be equated with operators in logic. The conjunctions “or” in English and “ou” in French do not impose the conclusion that it would be for the State to choose the way in which the defence may be carried out. The State cannot be said to fulfil its obligations under Article 6 § 3 if it merely grants either the right to defend oneself in person or the right to defend oneself through legal assistance. The fact that the phrase “defend himself in person/se défendre lui-même” is placed before the phrase “through legal assistance/avoir l’assistance d’un défenseur” puts the emphasis on the personal autonomy and legal subjectivity of the accused. The use of the active infinitive further emphasises the active role of the accused. The essential core of the right to defend oneself encompasses the right to determine the manner in which the defence should be assured. This is the right to defend oneself, not just the right to be defended. If the accused cannot determine for himself the line of his defence his right becomes meaningless and the trial cannot be regarded as fair. The State has to recognise the right to defend oneself effectively, but the defence may be in person or through legal assistance. All these considerations suggest that the choice of the means of defence is left to the accused and not to the State. Persons charged with a criminal offence may choose either to defend themselves in person or through legal assistance, or both in person and thorough legal assistance. Moreover, if a person charged with a criminal offence chooses to defend himself “through legal assistance of his own choosing”, the lawyer must act within the scope of the instructions given by that person.
6. We agree with the view that the right to defend oneself is not absolute and that certain restrictions on this right may be justified. In certain circumstances restrictions concerning the choice as to whether or not to appoint counsel may be justified. The legislation may also require that certain procedural acts have to be performed by qualified lawyers. However, the restrictions imposed must preserve the essential content of the right in question and observe the requirement of proportionality. The majority expressed the following view (see paragraph 122 of the judgment): “According to the long-established case-law of both the Commission and the Court, Article 6 §§ 1 and 3 (c) thus guarantees that proceedings against the accused will not take place without adequate representation for the defence, but it does not necessarily give the accused the right to decide himself in what manner his defence should be assured (see Correia de Matos, cited above; Mayzit v. Russia, no. 63378/00, § 65, 20 January 2005; and Breukhoven v. the Czech Republic, no. 44438/06, § 60, 21 July 2011).” We fundamentally disagree with this approach. A situation in which an accused who is mentally competent does not have the right to decide himself in what manner his defence should be assured constitutes an infringement of the substance of the right to defend oneself, explained above, and is incompatible with the requirement of a fair hearing in Article 6. In our view the case-law of the Court should be aligned with the Convention.
7. We note that the provision in question refers to “legal assistance/assistance d’un défenseur”. The Convention does not refer to representation by a lawyer. The role of defence counsel is to assist the client, not to replace him. The lawyer has to advise the client and to perform legal acts in compliance with, and within the limits of, the instructions given by the client. This role of the lawyer is emphasised particularly strongly in the French text of the Convention. While the law may provide for the compulsory assistance of a lawyer it should not establish a monopoly for the lawyer to perform all legal acts in the proceedings. The accused should in principle be empowered to perform legal acts if he so chooses; only certain especially important acts, such as cassation appeals, may be reserved for the lawyer, provided that such a restriction is proportionate to the aim pursued and does not infringe the substance of the right in question. In paragraph 156 the majority list the procedural rights of the accused. We would like to rectify here one point which has not been accurately reflected in this paragraph. The Portuguese Supreme Court found that the rules of domestic law allowed accused persons to prepare their defence together with defence counsel. They could also submit observations, statements and requests which did not raise questions of law (case no. 7/14.0TAVRS.S1, judgment of 20 November 2014, paragraph XI – see paragraph 57 of the reasoning). The majority refer to being “assisted by counsel” and to “the requirement to be assisted by counsel” (see, for instance, paragraphs 153 and 158). We note in this context that the rights of the accused to defend himself in person are very limited under Portuguese law. All acts which produce legal effects have to be performed by an advocate, with the exception of the right to revoke measures carried out by the advocate. Therefore the instant case is not about the compulsory assistance of a lawyer in criminal proceedings but about the incapacitation of the accused in criminal proceedings. The accused is more a passive object of the proceedings, who has to bear the consequences of his counsel’s choice, than an active legal subject able to assert his autonomy and determine his destiny. This is clearly an illiberal and paternalistic element of the legal system of the respondent State.
8. The majority expressed the following view (paragraph 153): “The Court can accept that a member State may legitimately consider that an accused, at least as a general rule, is better defended if assisted by a defence lawyer who is dispassionate and technically prepared, a premise reflected in the relevant provisions of Portuguese law on which the impugned decisions in the present case were based. It further accepts that even a defendant trained in advocacy, like the applicant, may be unable, as a result of being personally affected by the charges, to conduct an effective defence in his or her own case.” We agree that the assistance of a lawyer is typically beneficial to the accused from the perspective of the most favourable outcome of a criminal case. The lawyer approaches the case with the distance required in order to choose the best defence strategy, and acts free from the personal stress stemming from the possibility of a conviction. However, the present case raises the fundamental question whether the State may limit the rights of an individual in order to protect him from his own irrational behaviour. Such an approach is called paternalism. We do not rule out the possibility that the State may impose such restrictions. However, in our view, the interests of the accused cannot justify the restriction of his personal autonomy to the extent provided for in Portuguese law. If one follows the logic of the majority one might well accept that citizens may be better protected if, instead of taking part in person in political life and exercising their own political rights, they leave this task to those who are dispassionate and technically prepared.
9. The majority refer, in paragraphs 117 and 129, to the judgment in the case of Animal Defenders International v. the United Kingdom ([GC], no. 48876/08, ECHR 2013 (extracts)). That judgment set forth the following standards: “108. It emerges from that case-law that, in order to determine the proportionality of a general measure, the Court must primarily assess the legislative choices underlying it (James and Others, § 36). The quality of the parliamentary and judicial review of the necessity of the measure is of particular importance in this respect, including to the operation of the relevant margin of appreciation (for example, Hatton, at § 128; Murphy, at § 73; Hirst at §§ 78-80; Evans, at § 86; and Dickson, at § 83, all cited above) ... 114. ... The prohibition was therefore the culmination of an exceptional examination by parliamentary bodies of the cultural, political and legal aspects of the prohibition as part of the broader regulatory system governing broadcasted public interest expression in the United Kingdom and all bodies found the prohibition to have been a necessary interference with Article 10 rights.” The judgment in the case of Animal Defenders International links the proportionality assessment with the democratic nature and quality of the process by which the conflicting values and interests are carefully assessed and weighed. The democratic pedigree of a legislative provision is considered as an argument in favour of its compatibility with the Convention. We are not persuaded that the quality of the legislative process can justify disproportionate measures, but the question of the democratic or authoritarian pedigree of a legislative measures may be relevant from the viewpoint of the interpretation of the Convention, especially for the purpose of establishing the existence of a “common heritage of political traditions, ideals, freedom and the rule of law” or addressing questions concerning the existence of the so-called “European consensus”. We note in this context that the impugned provisions were introduced in Portugal in 1924 during a period of non-democratic rule. While it is true that they were maintained after the establishment of constitutional democracy, the principle of compulsory representation in criminal proceedings has never been discussed in Parliament, nor has its necessity been considered by its members or by experts appointed in the legislative process. No arguments for or against were put forward in the legislative process. No deliberate legislative choice was made. The quality of the parliamentary review of the impugned measure cannot be regarded as satisfactory (contrast with paragraph 146 of the reasoning). The Court is dealing here with a remnant of a non-democratic period, serving the economic interests of a specific professional group. We would like to stress here that the Preamble to the Convention refers, inter alia, to “an effective political democracy”, “a common understanding and observance of ... human rights” and “a common heritage of political traditions, ideals, freedom and the rule of law”. It is problematic to accept that restrictions on rights introduced under authoritarian or totalitarian regimes are part of this heritage and should be taken into account for the purpose of assessing the existence or lack of the so-called “European consensus”.
10. The majority emphasise the margin of appreciation left to the High Contracting Parties under the Convention. We agree with the view that States should enjoy a broad margin of appreciation in the implementation of the Convention. The margin of appreciation has to be respected in particular in the process of weighing conflicting values for the purpose of assessing the proportionality of a measure. This margin ends, however, where the essential minimum core of a right begins.
11. We note that the Human Rights Committee recognised that the Covenant on Civil and Political Rights guarantees the right to defend oneself without a lawyer (see UN Human Rights Committee, Correia de Matos v. Portugal, Comm. 1123/2002, U.N. Doc. A/61/40, paragraphs 7.3, 7.4 and 7.5., and General Comment No. 32 entitled “Article 14 of the ICCPR: Right to equality before courts and tribunals and to a fair trial”, CCPR/C/GC/32, paragraph 37). While we agree with this view we regret the fact that it was not supported by more detailed legal argument and in particular that the rationale and values underlying this right were not set forth by the Committee, as this omission deprives the views expressed of their persuasive force. It would have been useful to accompany the views expressed under the Covenant by more extensive reasoning explaining the interpretive choices made by the Committee. We have here a paradoxical situation in which there is a universal standard much higher than the regional standard established by the case-law of this Court. In any event, the respondent State has the obligation to adapt its domestic legislation to the International Covenant on Civil and Political Rights, and the outcome of this case does not affect that obligation. The majority decided to challenge the Human Rights Committee, disregarding the provisions of the Convention and engaging in a fight for the preservation of the margin of appreciation under the Convention in an area where this margin of appreciation has in any event been considerably reduced by the entry into force of the International Covenant on Civil and Political Rights. The final result is simply an increased fragmentation of international human rights law.
12. In conclusion: the restrictions imposed on the accused in the instant case prevented him from determining how his defence should be conducted and therefore infringed the substance of the right to defend oneself guaranteed by Article 6 § 3 (c) of the Convention. Moreover, the criminal proceedings involving the applicant, considered as a whole, were blatantly unfair and violated the right to a fair trial guaranteed by Article 6 § 1 of the Convention. We regret that the majority decided to condone a paternalistic measure reducing the fundamental human right to defend oneself to the right to be defended. Such an illiberal approach is not without consequences. The instant judgment paves the way for wide acceptance of paternalistic elements in legal systems.
DISSENTING OPINION OF JUDGE BOŠNJAK
1. I unfortunately cannot agree with the majority that in the present case there has been no violation of Article 6 §§ 1 and 3 (c) of the Convention.
2. In this particular case, the Grand Chamber was invited to revisit the Court’s case-law on the right of an accused to defend himself in person in criminal proceedings, as guaranteed by Article 6 § 3 (c) of the Convention. In a past case involving very similar facts, the same applicant was refused leave to do so and was instead assigned a lawyer to represent him. A Chamber of this Court dismissed his application as manifestly ill-founded, on the grounds that it fell within the States’ margin of appreciation whether to allow an accused to defend himself in person or to assign him a lawyer. Subsequently, the applicant submitted a communication based on those very same facts to the United Nations Human Rights Committee (hereinafter “the HRC”), arguing that his analogous right under Article 14 § 3 (d) of the International Covenant on Civil and Political Rights had been violated. In its Views adopted on 28 March 2006, the HRC found that the above‑mentioned right on the applicant’s part had not been respected.
3. While coherence in international human rights law is important, the Court is not bound by the position of the HRC and is not expected to adapt its case-law on account of a specific instance of discrepancy in the views of the two bodies. In my opinion, however, the position taken by the Chamber in application no. 48188/99 was incompatible with some fundamental human rights principles applicable to criminal procedure. These principles are clearly discernible from the existing case-law of our Court on different Article 6 issues. Therefore, the Grand Chamber was faced with an opportunity to align the Court’s case-law on matters of principle.
4. It is my belief that in the light of the fundamental principles of procedural fairness as also enshrined in Article 6 of the Convention, criminal proceedings are to be understood as the resolution of a legal dispute between two parties, one being the prosecutor, asserting that the accused has committed a criminal offence for which he is also criminally responsible, and the other being the accused, defending himself against the prosecutor’s claims. Thus the accused is to be perceived as an autonomous subject of the proceedings, a position which was historically far from self‑evident. Often an accused was considered an object of examination or a source of information, his confession being the “crown jewel” of evidence.
5. This conception of procedural fairness is also clearly reflected in the case-law of this Court. Although they are not explicitly mentioned in the text of Article 6 of the Convention, the Court has, for example, considered that the right to silence, the privilege against self-incrimination and the principle of equality of arms form an integral part of the Article 6 guarantees. If proceedings are to be considered fair, the accused cannot be turned into an object of the proceedings and be compelled to testify against himself. The right not to incriminate oneself lies at the heart of the notion of a fair procedure under Article 6. A situation where an accused is turned from a subject to an object of the proceedings would be fundamentally unfair.
6. As an autonomous subject of criminal proceedings an accused can, at least in principle, decide on the manner in which he wishes to be defended. Consequently, he is entitled to determine whether he needs legal assistance in his defence or not. In a particular case, his choice may seem to be counterproductive, irrational or simply incompatible with what an independent observer would consider to be in the accused’s best interest. However, in a democratic society an individual is in principle entitled to such choices for various reasons. First and foremost, the State is not omniscient. It might not necessarily understand the rationale behind the accused’s actions and is not necessarily best placed to know what is good for his position in a particular set of criminal proceedings. Furthermore, the State’s intervention is not necessarily designed in good faith. It might interfere with the defence in order to impose its own interests in a particular set of proceedings. Finally, autonomy as such is incompatible with outside interference. Just as a patient may in principle refuse medical assistance, an accused may refuse legal assistance. The right to choose counsel also implies a right not to choose any.
7. Consequently, I fundamentally disagree with the view of the majority that Article 6 §§ 1 and 3 (c) of the Convention does not give the accused the right to decide himself in what manner his defence should be assured and that the decision to allow an accused to defend himself in person or to assign him a lawyer falls within the margin of appreciation of the Contracting States. Such a paternalistic approach, denying any autonomy on the part of the accused to determine his defence, is in my view incompatible with procedural fairness.
8. Like any principle in law, the accused’s autonomy to determine his own defence may have limits and the court conducting the criminal proceedings may be called upon to intervene. In doing so it may assign an attorney to assist the accused contrary to the latter’s wish to defend himself without counsel. Various convincing or even compelling reasons may exist calling for such intervention. First and foremost (a), the autonomy of the accused may be factually diminished, for example, on account of illness, disability or age. Equally (b), the autonomy of the accused may be considerably limited owing to the circumstances of the case. He may be in a situation of special vulnerability, for example in cases of deprivation of liberty coupled with a first appearance or questioning where the interview statement will be used in court, or during plea bargaining. In such situations, an attorney can reasonably act as a buffer preventing the State and its agents from overriding the subject status of the accused. The vulnerability is all the more evident where the accused is facing a long-term custodial sentence or other serious punishment. Likewise, the legal and factual complexity of a case may render the legal assistance of an attorney obligatory. Furthermore (c), the court may establish that the accused is conducting his defence in a manifestly irrational manner. Finally (d), it might be necessary for the court to intervene if the accused abuses his right to self-representation in order to undermine the authority of the court, or has a negative effect on the interest of his co-accused in having the proceedings conducted in an expeditious manner. This list is not an exhaustive one – other circumstances pertaining to a specific case or a specific defendant may also call for mandatory legal assistance.
9. It goes without saying that the High Contracting Parties are better placed than the Court to establish whether, in a particular case, any compelling reasons exist for interfering with an accused’s choice to conduct his own defence. In doing so, they enjoy a certain margin of appreciation. But the onus is on them to produce such reasons in the proceedings before the Court should a dispute on the matter arise. These reasons must be concrete and pertain to the case in question. They must also be compatible with the principle of fairness, encompassing the guarantees of Article 6 of the Convention.
10. In the present case the applicant was assigned counsel simply because the law mandated representation if a prison sentence was possible, however remote this possibility may have been under the circumstances. The applicant could not successfully apply for leave to represent himself, as the national law did not provide for any exceptions. In their observations before the Grand Chamber the respondent Government asserted that the overriding interests of justice and the effective defence of a defendant legitimised the provisions of the Code of Criminal Procedure on compulsory representation, which were applicable in the applicant’s case. However, the Government failed to specify any interest of justice pertaining to the case in question and, in particular, why the applicant should be considered incapable of defending himself effectively. In addition, the assignment of counsel to the applicant was clearly futile: the lawyer did not perform any acts in the applicant’s defence, while the applicant was prevented from acting in his own defence. In short, it is clear that in the present case no interests of any sort were served by interfering with the applicant’s right to self-representation.
11. In such circumstances, I cannot but conclude that the interference with the applicant’s autonomy in conducting his defence in criminal proceedings had no reasonable and concrete justification and was not fair under the circumstances. Consequently, I believe that the Grand Chamber should have found a violation of Article 6 §§ 1 and 3 (c) of the Convention.
136. As regards EU law, the terms of the Charter of Fundamental Rights of the European Union, the explanatory notes which accompany it and Directive 2013/48/EU suggest that the rights guaranteed by Articles 47, second paragraph, and 48(2) of the Charter correspond to those in Article 6 §§ 1, 2 and 3 of the Convention. As for the Directive, which does not appear to have been the subject of an interpretation by the Court of Justice of the European Union to date, both Articles 3(4) (“Notwithstanding the provisions of national law concerning the mandatory presence of a lawyer ...”), and 9(1) (“Without prejudice to national law requiring the mandatory presence or assistance of a lawyer ...”), appear to leave the choice regarding whether or not to opt for a system of mandatory legal representation to individual Member States.