The Right to Legal Assistance of Criminal Defendants－Use Judgments of European Court of Human Rights as Examples
Date Issued
2007
Date
2007
Author(s)
Lu, Ya-Ting
DOI
zh-TW
Abstract
The criminal procedure code in a modern legal country acknowledges the defendant’s principal status in the legal procedure. Enjoying the right to defense, the defendant can exercise this right in person. Nevertheless, it often occurs that the defendant does not possess professional legal knowledge; consequently, a certain degree of discrepancy exists between public feelings and legal provisions. Moreover, legal language is quite distinct from the common language. A defendant without legal knowledge would even find it difficult just to understand a legal issue or question posed by a national institution with professional legal knowledge, not to mention the ability to defend his/her rights effectively. Such a disparity in influence would further intensify the defendant’s fear and restlessness. In light of the lack of the ability to make clear expressions, the defendant would be easily misunderstood as being diffident, speaking evasively or quibbling, which would lead to misjudgment. Accordingly, it has long been established in human history to have a person with legal expertise to assist the defendant in exercising the right to defense, the so-called practice of the “defense system,” whose origin dated back to the Roman Period. Subsequently, along with the development in the structure of criminal proceedings, the prevalent Inquisitorial System in the Centralization era shifted to the Accusatorial System used in the modern era. Under the structure of the Accusatorial System, it evidently balances the disparity in the defendant’s power and the strong national authority, thereby to materialize the significance of fair procedure. Thus, how to prevent the principal role of the procedure – the defendant enjoys the right to defense – from falling into “The Emperor’s New Clothes” has always been an important issue. The development of the defense system and the function of legal assistance are important aspects of the major issue.
Legal problems have their own epoch characteristics. Along with the advance of time, new thinking is generated and more detailed issues emerge one after another. The intension of the defendant’s right to defense ought to be substantially effective and practical. That the defendant is assisted by the attorney at law also should achieve such efficiency and effectiveness. The reasons are simple: the existence of an empty right is equivalent to an unfulfilled promise or a lie. In addition, to substantiate the intension of the criminal defendant’s right of being assisted by the attorney, it is necessary to have the important mechanism of further generating more detailed development. For instance, the detainee has the right to consult and correspond with the attorney freely and privately, to access to relevant documents. Thus, how to further delve into the specific problem in a meticulous way is really an issue worthy of in-depth study.
The correlation between the criminal procedure problem and human rights protection is quite close. Accordingly, this thesis chooses to refer to the international regional human rights supervisory institution (the European Convention for the Protection of Human Rights and Fundamental Freedoms and the European Court of Human Rights) as the subject of the comparative law, introducing problems related to the European Court of Human Rights, how to reinforce the inlay and orientation in the trend of treatise, and the specific problems dealt under the assistance of the attorney; for example: When is the beginning point of the right to legal assistance of criminal defendants? When the government interferes in the consultations and correspondences between the attorney and the detainee, what are the reasonable and legitimate limits of such interference? Under the protection of “equality of arms,” the defendant’s right to gain access information ought to be guaranteed. Nonetheless, the public interests of investigating a crime must not be neglected. How, then, to balance and look after the two ends of this spectrum? How the European human rights courts determine on general criteria of European human rights protection through the interpretation of the Convention? Learning about how to respond and deal with these specific problems, I hope to offer another perspective to ponder over the problems when Taiwan is facing the same ones.
Here are the structures of this thesis:
Chapter Ⅰ: Introduce the research motive, research method, and the arrangement of this thesis.
Chapter Ⅱ: Introduce the intensive guarantees of Article 6-3 “The Minimum Rights of Criminal Defendants” and the relevant leading cases.
Chapter Ⅲ: Centralize on Article 6-3 c “Defense through Legal Assistance”, introduce the important judgments, and sort out some significant issues.
Chapter Ⅳ: Introduce the relevant discussions in Taiwan and sort relevant judgments of Taiwan’s Courts.
Chapter Ⅴ: Inspect some problems of Taiwan’s law stipulations and clinical operations, discuss, in order protect human rights, analyze how to revise these problems by referring to the standard of the European Court of Human Rights, and provide individual opinions.
Chapter Ⅵ: Conclusion.
Subjects
刑事被告受律師協助權
有效協助,辯護制度
公平審判
接見通訊
閱卷
武器平等
專業特權
the right to legal assistance
defense system
fair trial
consultations and correspondences between the attorney and the detainee
communicate freely and privately with counse
access to documents
equality of arms
professional privilege
SDGs
Type
thesis
File(s)![Thumbnail Image]()
Loading...
Name
ntu-96-R92a21046-1.pdf
Size
23.31 KB
Format
Adobe PDF
Checksum
(MD5):0b5758ff979ac1cc5a2ba804fcac5fdc