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Human Rights our Collective Responsibility Hill v. Spain : "legislation [which] does not allow an accused person to defend himself in person, [is] contrary to article 14, paragraph 3 (d), of the Covenant." 57 The right to defence is a key component of article 7(1). No substance would be left to this right if it meant that individuals whose rights are infringed can only pursue them through the services of a third party. This would undoubtedly prejudice parties with no or limited means to afford the services of a lawyer or those who are unable to identify 'counsel of their choice'. Arguably, the rights under article 7 are stipulated in favour of the concerned individual and it is up to them to choose if they wish to use the services or an attorney or institute the proceedings themselves. 156. In conclusion, "the right to be defended by counsel of his .choice", in other words recourse to an attorney is an entitlement and not a requirement quoad individuals, and article 7(1)(c) must be so construed. It is stipulated in favour of the concerned party who can renounce it and therefore is free to retain the services of an attorney or not. Once the services of a lawyer are made available, it is up to the individual to decide whether to use those services or not. 157. Individuals can indeed renounce to their rights if they so freely choose. No one should be compelled to use the services of an attorney against their free will to take on their own case themselves, based on their free and informed choice to litigate in person. Article 7(1)(c) directs the use of "counsel of his choice".58 To hold otherwise would undermine the whole range of judicial safeguards set forth under article 7 in order to ensure fairness and justice in judicial proceedings and to protect individuals against arbitrariness. Clearly by establishing article 7, the Charter aims at easing not inflating the burden borne by the individual litigant. 158. The Commission concludes that the 1 July 2011 Ruling of the Supreme Court and the subsequent refusal by the JCPC to entertain an appeal against that decision 159. 57 Communication No. 526/1993, Michael and Brian Hill [represented by a non-governmental organization] v Spain Declared admissible: 22 March 1995 (fifty-third session) Date of adoption of Views: 2 April 1997 (fifty-ninth session) U.N. Doc. CCPR/C/59/D/526/1993 (2 April 1997), para. 14.2. 58 For a discussion on the shortcomings of the pro deo system, see Communication 319/06 - Interights & Ditshwanelo v. The Republic of Botswana, ACHPR, 2015. The Commission held that there would a violation of the Charter if the pro deo attorney assigned to the victim in this present case was a young and in-experienced couns ,., 4 lacked the requisite skills, resources and commitment to handle the case, so as to cause a miscar """.., ( a violation of his fair trial rights. At paras. 70-75. <?.: Page 37 of 45 At�nt�\ Urnon\!.il l � , � ,) African Commission on Human an 31 Bijilo Annex Layout, Korn West Coa Phone: (220) 230 4361 Fa Email: au-banjul@a r �..'!:.; ig nts/ A <;:. \\ � : \\•' �• � isfrltt� ·, o'<-"'<:> https:/achpr.au.int10 0 a

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Communication 459/13 - Devendranath Hurnam v. Mauritius

ACHPR Decision

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Type of Document

Decision

Keywords

Equality
Equality Before the Law
Functioning and Independence of the Judiciary
Right to be Heard before a Competent Court

Case Head Notes: The Complainant is a lawyer, who, in the midst of dealing with charges that were brought against him, wished to represent himself without the services of an attorney. The Respondent State denied this possibility. The Commission found a violation of Article 3 stating that the right to litigate one's own case is protected under the African Charter, and because, otherwise, those who are unable (because of financial or other reasons), or unwilling, to use the services of an attorney will be deprived of their right to be heard by the Court. The Commission also noted that the right to litigate in person is not refused to the representatives of the State, so to deny that right to the other party is unequal. The Commission found a violation of Article 7 stating that, given that the Complainant was refused the opportunity to present his case in front of the Supreme Court and the Judicial Committee, the Complainant was denied the opportunity to appeal to a competent national organ, and, therefore, denied the right to have his case heard. The Commission further states that no substance would be left to the right to defence if it meant that individuals, whose rights are infringed, can only pursue justice through the services of a third party. The Commission asserted that the right to be defended by counsel of their choice is an entitlement and not a requirement. The Commission found no violation of Article 26 stating that the Complainant submitted a series of allegations which could not be sufficiently substantiated and cannot be considered as solid evidence. They also state that they do not have a reason to conclude that the Respondent State has not allowed the establishment and improvement of appropriate national institutions entrusted with the promotion and protection of human rights, as required by Article 26 of the Charter. The Commission requested the Respondent State to take all necessary measures to ensure the reopening of the proceedings, as requested by the Complainant, and to allow him to be self-represented if he desires. The Commission also requested the Respondent State to ensure that its laws and statutes, regarding access to courts, are in line with its obligations under the Charter and to provide the Complainant with financial compensation.

Country

Mauritius

Outcome: Decided on Merits

Year Decided: May 23, 2023

Rights Alleged to be Violated (ACHPR Provisions)

ACHPR 7: Right to Fair Trial
ACHPR 26 : Duty to Guarantee Independence of Courts
ACHPR 3: Right to Equality before the Law and Equal Protection of the Law

Rights Violated (ACHPR Provisions)

ACHPR 7: Right to Fair Trial
ACHPR 7.1: Right to be Heard
ACHPR 3: Right to Equality before the Law and Equal Protection of the Law
ACHPR 7.1.a: Right to Sue for Remedy before a Competent Tribunal
ACHPR 7.1.c: Right to Defence

Rights Not Violated (ACHPR Provisions)

ACHPR 26 : Duty to Guarantee Independence of Courts

Duration of Procedure

Sep 18, 2013 ~ May 23, 2023

Country Geolocation

Latitude: -20.348404

Longitude: 57.55215200000001

Country Geolocation (linked ACHPR Decision): Mauritius

Primary Documents

Devendranath Hurnam v Mauritius.pdf
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African Human Rights CLA 2.0

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Communication 459/13 - Devendranath Hurnam v. Mauritius

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