The right to a defence is more than words on paper: what happens when the system becomes an obstacle to justice?

In legal theory, the right to a defence is an axiom. In the courtroom, it is a daily struggle. As a lawyer, I consider it my duty to react the moment procedural discipline gives way to personal animosity or procedural irregularities. The right of the accused, and of juveniles in particular, to a defence lawyer of their own choosing is the foundation of a fair trial, guaranteed by the Constitution of the Republic of Serbia and the European Convention on Human Rights.

The chosen defence lawyer: the inviolable will of the client

When a client, of their own free will, expresses the wish to be represented by a particular lawyer, the court must verify that will, not question it or, worse still, obstruct it. Any attempt to impose a court-appointed lawyer where a chosen defence lawyer exists, or the physical removal of a power of attorney from the case file, is a direct attack on the integrity of the judiciary.

In my practice, I was recently compelled to file a motion for the recusal of the presiding judge. The reason? Conduct that went beyond legal reasoning and into the realm of subjective and biased action. When powers of attorney are “removed” from a case file, it is not merely a procedural error: it is a violation of human rights.

The hierarchy of legal acts: the Constitution before the court's rules of procedure

I often remind colleagues and judges of a basic first-year law lesson: the hierarchy of legal acts. Nothing, not even a judge's internal official note, can override a suspect's right to choose who will defend them.

Article 33 of the Constitution of Serbia: everyone has the right to be tried in their presence and to defend themselves in person or with the assistance of a defence lawyer of their own choosing.

Nothing, not even a judge's internal official note, can override a suspect's right to choose who will defend them.

Slaviša Cincarević

Article 6 of the European Convention: the right to a fair trial includes adequate time and facilities to prepare a defence with a legal representative of one's choosing.

A complaint as a legitimate means of struggle

Many wonder whether it is worth complaining about a judge's conduct. The answer is always: YES. As professionals, we are obliged to use every legal remedy to protect our clients.

In a specific case of obstruction of the right to a defence, I filed a complaint about the conduct of the presiding judge. The result? The complaint was upheld as well-founded. This confirms that the legal system has internal control mechanisms which, when properly invoked, can sanction unprofessional and unlawful conduct. A successful complaint is not merely a personal victory, but a message that the courtroom is a place for the application of the law, not for arbitrariness.

The particularities of proceedings involving juveniles

When juveniles are concerned, the standards of care must be twice as high. A violation of the right to a defence in these cases leaves lasting consequences not only on the outcome of the proceedings, but also on a young person's trust in the institutions of the system. I consider any attempt at arbitrary treatment of juveniles from vulnerable communities not only a legal but also an ethical violation.

Conclusion: the lawyer as guardian of procedure

My role is not only to know the law, but to act as a corrective factor where procedure fails. If a judge ceases to be an impartial arbiter and becomes a party to the proceedings, recusal is the only way. The right to a defence is the bulwark of a civilised society, and we lawyers must defend that bulwark even when the blows come from the places from which justice should come.

This text expresses the author's professional opinion and does not constitute legal advice for a specific case.