Replacing state-appointed defence counsel

Positions of the trial and appellate courts: the lower courts found the defendant guilty and convicted him under Article 407(5) of the Criminal Code.

In the cassation appeal, the defence argued that the trial court had breached Article 54 of the Criminal Procedure Code by refusing to replace counsel whose representation the defendant disagreed with.

Position of the Criminal Cassation Court: the lower courts’ decisions were upheld.

Reasoning of the Criminal Cassation Court: the panel stated that, under Article 13(1) of the Law on Free Legal Aid, free secondary legal aid is a state guarantee designed to provide equal access to justice. In exercising this guarantee, a person cannot freely choose defence counsel, because Article 49 of the Criminal Procedure Code provides for appointment by an investigator’s or prosecutor’s decision or by a judge’s or court’s ruling. Likewise, a recipient of free secondary legal aid cannot, at their own discretion, require the court to replace counsel for personal reasons.

The Criminal Procedure Code does not empower a court to replace or remove a lawyer appointed by a free secondary legal aid centre, except through disqualification under Article 78.

The right to replace counsel under Article 54 derives from the freedom to choose a lawyer, which a person exercises independently by entering into an agreement with their chosen lawyer. It does not extend to the right to free secondary legal aid, under which a person receives state-guaranteed, publicly funded representation rather than choosing counsel.