Guaranteeing the Right to Defence Counsel in Estonian Criminal Proceedings: the Estonian System of Defence Counsels

Abstract

The aim of this article is to introduce the system of Estonian defence counsels as well as analyse problems it currently faces. As repeatedly stressed by the European Court of Human Rights, the right to counsel has a prominent status in criminal proceedings. In Estonia, accused persons may either hire counsel or counsel is appointed by the state. The system of state legal aid is operated by the Estonian Bar Association, which appoints counsels among its members, advocates. While only advocates may be appointed counsels, retained counsel may be any person with legal education by permission of the body conducting the proceedings – the court, the investigative body, or the Prosecutor’s Office. The Supreme Court of Estonia has emphasised that the body conducting proceedings may withdraw its consent if it turns out that the person does not have enough knowledge about Estonian criminal proceedings or criminal law. In addition, several grounds exist for the removal of both advocates and non-advocates. This is a controversial subject, as an accused has the right to have his chosen counsel by his side throughout the whole proceedings. Also, in state legal aid it is preferable that counsel participates from the very beginning to the end of the proceedings. Yet in some cases the court’s failure to remove counsel may violate the accused person’s rights. In Estonian law, there are three grounds for removal, two of which – conflict of interests, and ineffectiveness of defence counsel – have a practical meaning.