Summary

In relation to the amendments to the Code of Criminal Procedure that entered into force on 1 September 2011, several aspects of the right of defence and the ensuring thereof have attracted wider attention. This article analyses the position of a very important component of the right of defence—the right to choose a criminal defence counsel and use the help of the chosen counsel—in Estonian legal order. The issue is topical, above all, due to the sharp questions regarding the application of § 43 (2) 4) of the Code of Criminal Procedure, which have emerged and caused continuing debates in specialised communities already. According to the clause, a counsel shall be appointed to the person by the Estonian Bar Association at the request of an investigative body, Prosecutor’s Office or court, and this is done regardless of the fact that the person has a contractual counsel in the proceedings, if the counsel cannot appear at the hearing in a case of general procedure in which he or she has assumed the duties of defence and he or she has not appointed a substitute counsel for himself or herself. This clause entails a number of serious problems, which the author briefly describes in the article. Besides issues related to the implementation of the particular provisions of the Code of Criminal Procedure, the article also discusses the right to use a chosen counsel in the context of the Estonian Constitution and international law.