The role of lawyers should be recognized in the Constitution and other national laws, including as an essential element of the right to a fair trial.
National law should, by express provision or interpretation, specifically recognize the following, at minimum: the general right of everyone to consult with and be represented by a lawyer of choice in relation to any proceedings before any court or tribunal and other matters of a legal character; the right of individuals charged with or questioned in relation to a criminal offence, to have access to and be represented by counsel of their choice in relation to the charges or questioning; the right of all persons deprived of liberty for any reason to prompt access to and representation by a lawyer of their choice (or, in exceptional cases, another independent lawyer). National law should also provide for legal assistance to be appointed in any case where the interests of justice so requires, and free of charge if the person cannot afford to pay.
Article 82 of the Constitution of Honduras affirms the general right to a defense, but no part of the Constitution explicitly refers to a general right to a lawyer. Article 83, however, does provide that the State will appoint lawyers to provide legal assistance and representation to the poor, to children and to incompetent persons.
Article 14 of the Code of Criminal Procedure elaborates on the right to defence as prescribed in article 82 of the Constitution. It states that “the right to defence is inviolable. The client and his/her lawyer are entitled to be present in the procedural acts that involve evidence and to make requests and comments they deem appropriate, without prejudice to the exercise of disciplinary power by the competent authority, when the exercise of the referred rights endanger the normal course of the procedural acts (…).”
Articles 15 and 101 of the Code of Criminal Procedure further affirm the right of every person suspected of the commission of a crime to be represented by legal counsel of his/her choice, or for one appointed by the state. The Code provides that violation of this right nullifies any procedures that occurred without the presence of a lawyer.
- 1. See for instance: UN Basic Principles on the Role of Lawyers, Preamble (“The Basic Principles on the Role of Lawyers, set forth below… should be respected and taken into account by Governments within the framework of their national legislation and practice)”; Human Rights Council, Resolution on the Independence and impartiality of the judiciary, jurors and assessors, and the independence of lawyers, UN Doc A/HRC/RES/23/6 (2013), para. 1 (“Calls upon all States to guarantee the independence of … lawyers …, as well as their ability to perform their functions accordingly, including by taking effective legislative … measures”); Special Rapporteur on the independence of judges and lawyers, Report to the General Assembly, UN Doc A/64/181 (28 July 2009), paras 15-18, and 105 recommending that: “(a) The right to legal counsel of choice be enshrined at constitutional level or be considered as a fundamental principle of law; this fundamental right must be adequately translated into domestic legislation” and “(c) Legislation regulating the role and activities of lawyers and legal profession be developed, adopted and implemented in accordance with international standards; such legislation should enhance the independence, self-regulation and integrity of the legal profession…”.↵
- 2. International Covenant on Civil and Political Rights, Article 14(3)(d).
In the determination of any criminal charge against him, everyone 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;
Principle 3 Legal aid for persons suspected of or charged with a criminal offence
20. States should ensure that anyone who is detained, arrested, suspected of, or charged with a criminal offence punishable by a term of imprisonment or the death penalty is entitled to legal aid at all stages of the criminal justice process.
21. Legal aid should also be provided, regardless of the person’s means, if the interests of justice so require, for example, given the urgency or complexity of the case or the severity of the potential penalty.
22. Children should have access to legal aid under the same conditions as or more lenient conditions than adults.
23. It is the responsibility of police, prosecutors and judges to ensure that those who appear before them who cannot afford a lawyer and/or who are vulnerable are provided access to legal aid.
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. (Footnotes omitted.)
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. In some cases, they may even be obliged to do so. For instance, where a person sentenced to death seeks available constitutional review of irregularities in a criminal trial but does not have sufficient means to meet the costs of legal assistance in order to pursue such remedy, the State is obliged to provide legal assistance in accordance with article 14, paragraph 1, in conjunction with the right to an effective remedy as enshrined in article 2, paragraph 3 of the Covenant. (Footnote omitted.)
- 3. Constitution, Article 83.
The State shall appoint counsel to defend indigents and to protect the persons and interests of minors and other incompetents. They shall give legal assistance to them and represent them judicially in defense of their personal liberty and other rights.
- 4. Code of Criminal Procedure, Decree No. 9-99-E, February 2002.↵