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15 January 2010

Role of a represented accused in the proceedings

Recently, again, I've come across the opinion that an imposition of a counsel on an accused against the latter's wishes shall not be a problem in a jurisdiction with the common-law features. It has been argued that it is permissible in the civil-law systems.

Indeed, in a civil-law trial, an accused may personally participate in the examination of evidence, question witnesses, and make comments regardless whether or not he is represented by a counsel. In contrast, in the common-law system, an imposing a Defence counsel virtually bars the accused from the direct personal participation in the examination of evidence. That is why the civil-law approach to the imposition of a counsel against the wishes of the accused is more liberal.

In practice of the international criminal Tribunals, some accused, represented by counsel, were granted possibility to participate personally in examination of evidence. In particular, some accused were allowed directly put questions to witnesses subject to the Chamber’s discretion.

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