Correia de Matos v. Portugal: Fragmented protection of the right to defend oneself in person

Dr. Dorothea Staes (affiliated researcher, The Perelman Center for Legal Philosophy, ULB, Belgium and trainee at the European Commission)

In the Grand Chamber judgement Correia de Matos v. Portugal of 4 April 2018, the European Court of Human Rights (hereinafter: the Court) decided by a majority of nine votes to eight that the right to a fair trial was not violated with regards to the applicant, who was not allowed to conduct his own defence in the criminal proceedings against him. The blog focuses on how this judgement upholds fragmentation between the interpretation of human rights by the Court and the United Nations Human Rights Committee (hereinafter: HRC). It also develops arguments as to why harmony – instead of fragmentation – should have been the preferred option.

Brief summary of the facts and judgement

Carlos Correia de Matos – the applicant – is a lawyer by training. A Portuguese judge, alleging that he had been insulted by Mr. Correia de Matos, had lodged a complaint against him. In the course of the following criminal proceedings, Mr. Correia de Matos requested to conduct his own defence. The domestic courts denied this request and – on the basis of national rules of criminal procedure – required the applicant to be presented by counsel.

Mr. Correia de Matos lodged a complaint with the Court arguing a violation of Article 6 § 3 (c) ECHR, which provides that everyone charged with a criminal offence has the right “to defend himself in person or through legal assistance of his own choosing…”. The Court did not follow his argument. It took particular account of the fact that the domestic rule of mandatory legal representation had been the result of comprehensive legislation seeking to protect accused persons by securing an effective defence (para. 153). Bearing in mind Portugal’s margin of appreciation, the Court held that the reasons provided by the Government for the requirement to be assisted by a counsel had been both relevant and sufficient (paras. 143 and 159). There exists no cogent reason for the Court to doubt that the applicant’s defence by the court-appointed lawyer had been conducted properly or that the domestic proceedings had been in any way unfair (para. 166). Hence, the Grand Chamber concluded that the criminal proceedings involving the applicant did not violate Article 6 ECHR (para. 169). This conclusion was in line with an earlier decision (Correia de Matos v. Portugal, 15 November 2001, 48188/99) concerning a similar complaint lodged by the applicant, in which the Court had rejected the application as being manifestly ill-founded.

The Court upholds fragmentation with the Views of the HRC

Mr. Correia de Matos had also submitted a Communication to the HRC in 2002, challenging the prohibition to conduct his own defence in criminal proceedings under Article 14 § 3 (d) of the International Covenant on Civil and Political Rights (hereinafter: ICCPR), which is similar to Article 6 § 3 (c) ECHR. In its Views of 28 March 2006, the HRC referred to the clear wording of the provision providing for a defence to be conducted in person “or” through legal assistance of one’s own choosing (para. 7.3.). It argued that the right to conduct one’s own defence is a cornerstone of justice, which allows restrictions  only because of an objective and sufficiently serious purpose necessary to uphold the interests of justice (paras. 7.3. and 7.4). Each specific case thus requires an examination in concreto (para. 7.5). Under Portuguese legislation, an accused could never be released from the requirement to be represented by counsel in criminal proceedings. No objective and sufficiently serious reason could be found to explain why the absence of a court-appointed lawyer would have jeopardised the interests of justice (para. 7.5.). For these reasons, the HRC observed a breach of Article 14 § 3 (d) ICCPR.

In the Strasbourg case following Mr. Correia de Matos’ complaint, the Grand Chamber included a reference to the relevant provision of the ICCPR (para. 133). In this context, it cited Article 31 § 3 (c) of the 1969 Vienna Convention on the Law of Treaties (hereinafter: VCLT), which provides that when interpreting a treaty, “[t]here shall be taken into account, together with the context: … (c) any relevant rules of international law applicable in the relations between the parties”. On that basis, the Court repeated its well-known phrase that the ECHR “cannot be interpreted in a vacuum and should as far as possible be interpreted in harmony with other rules of international law of which it forms part…” (para. 134). However, the Court also underlined that “even where the provisions of the Convention and those of the ICCPR are almost identical, the interpretation of the same fundamental right by the HRC and by this Court may not always correspond” (para. 135).

The Court cannot be reproached for a lack of transparency. It cites the relevant external instruments explicitly (paras. 133 et seq.), it mentions examples of previous judgements in which it had regard to the HRC’s Views (para. 134) and it stresses that international developments should be considered (para.137). However, the judgement in Correia de Matos v. Portugal does not make us wiser regarding the effects of considering such international developments. In casu, the Court, without providing any further explanation on this point, refrained from harmonising its interpretation with the one of the HRC, which offers a higher degree of protection. This adds force to the impression that the Court gives substantive weight to external instruments only when they pragmatically serve its pre-established position (‘cherry picking’).

Integration through harmonisation

In their Joint Dissenting Opinion, Judges Tsotsoria, Motoc and Mits regret that the majority did not evolve the Court’s case-law by stressing the following:

“…developments in public international law call for a refinement of the principles relating to the right to defend oneself in person. As a consequence, we find that the margin of appreciation is more limited than has been acknowledged … This case offered an opportunity for the Grand Chamber to contribute to the harmonisation of international human rights law… (T)he principle of harmonious interpretation is well established in the case-law of the Court … and it is there to ensure coherence of international (human rights) law. The presumption against potential normative conflict is even stronger in the field of human rights (paras. 1 and 2).”

The Dissenting Opinion of Judge Pinto de Albuquerque joined by Judge Sajó goes in a similar direction, encouraging a meaningful dialogue between the Court and the HRC as well as an alignment of their positions (para. 75).

I fully agree with these dissenting Judges. Besides the Court’s previous case-law favouring convergence in international human rights protection (see, for example, Demir and Baykara v. Turkey, Bayatyan v. Armenia, Sergey Zolotukhin v. Russia, Šilih v. Slovenia, Scoppola v. Italy (No. 2), Stanev v. Bulgaria, Konstantin Markin v. Russia) other arguments are relevant, too.[1]

One argument builds on a human rights users’ approach, which puts those practically engaging with human rights, including the rights holders and duty bearers, in the centre of attention.[2]  From a rights holders’ perspective, it is important to stress that fundamental rights are based on shared moral values and must be provided equally to all. To achieve this ideal, the Court must avoid normative conflicts and integrate external instruments offering a higher protection, such as in casu the ICCPR as interpreted by the HRC. This would serve the universality of human rights as well as their consistent and fair administration. Harmonious integration is also defendable from a duty bearers’ perspective. By ratifying treaties such as the Convention and the ICCPR, States collectively work together to protect human rights and may not wish to see free riders in the field. The Portuguese decision not to bring its legislation in line with the HRC’s Views goes against such a collective spirit. Therefore, it is regrettable that the Court’s fragmented position offers Portugal ammunition to justify its inertia. Indeed, in a 2011 report submitted under the ICCPR, Portugal stressed the “very awkward position regarding the fulfilment of [Portugal’s] international human rights obligations” caused by the differences between the case-law of the Court and the Views of the HRC in respect of the same case (see para. 70).

Another argument in favour of harmonisation builds on some legal provisions pushing – and even obliging – the Court to align with international human rights law offering a higher protection. Let me start with Article 31 § 3 (c) VCLT. This provision aims at a systemic integration through harmonious interpretation of external norms applicable between the parties. This means that the Court is obliged to take into account other human rights instruments ratified by all the Member States of the Council of Europe, as is the case for the ICCPR. Although the Grand Chamber uses Article 31 § 3 (c) VCLT only seldom for this purpose (most often, the Court cites this provision to ensure a systemic integration between human rights law and general international law), it stressed in Correia de Matos v. Portugal that the ECHR “should as far as possible be interpreted in harmony with other rules of international law of which it forms part, including those relating to the international protection of human rights” (para 134; own emphasis).

Although the Court itself does not use it in this context, Article 53 ECHR can also be read as favouring an harmonious interpretation. This article provides that “[n]othing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a party”. It offers a ‘human rights safeguard’ by ensuring a peaceful coexistence between the Convention and higher external standards. It may be argued that this provision does not only address the national authorities but also the Court’s interpretation process. This implies that the Court should safeguard the standards under the ICCPR, which are common to all Member States of the Council of Europe, and ensure their peaceful coexistence with the Convention.

Conclusion

Under the right to defend oneself in person, the HRC, a quasi-judicial body giving an ‘authoritative interpretation’ to the ICCPR, offers a higher level of protection than the Court.  On the basis of Article 31 § 3 (c) VCLT and Article 53 ECHR, the Court – contrary to its current position – should align itself with the HRC’s Views. This means reducing the State’s margin of appreciation and not accepting an abstract domestic prohibition to defend oneself in person in criminal proceedings. In line with the HRC’s approach, the Court should examine in concreto whether the prohibition affected the right to a fair trial.

When we compare the pluralist normative context to a jungle, the Court should make use of the lianas to connect with other organisms, such as the HRC. Organisms are not isolated but part of a wider ecosystem. Within this system, the law of the jungle forces the organisms to live together in harmony. Harmony does not necessarily imply unity. Some diversity and fragmentation between protection mechanisms is inevitable and valuable. But, from the moment all Member States are obliged to respect a higher level of protection under an external mechanism, the law of the jungle and the interests of its inhabitants require the creation of harmony through convergence.

 

[1] See also: Brems E., “Should Pluriform Human Rights Become One? Exploring the Benefits of Human Rights Integration”, in E.J.H.R.E.J.H.R., Vol. 4, 2014, pp. 447-470.

For an in-depth development of the arguments, see my PhD dissertation (“When the European Court of Human Rights refers to External Instruments. Mapping and Justifications”) defended at the Université Saint-Louis Bruxelles on 26 June 2018. For a specific analysis of the Court’s external references concerning the rights of persons with disabilities, see D. Staes and J. Damamme, “External referencing by the ECtHR and human rights integration: (Missed) opportunities for rights of persons with disabilities”, in Human Rights Tectonics. Global Perspectives on Integration and Fragmentation to be published by Intersentia in 2018.

[2] On a users’ perspective, Desmet E., “Analysing Users’ Trajectories in Human Rights: A Conceptual Exploration and Research Agenda”, in HR&ILD, Vol. 2, 2014, pp. 121-141.

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