As an accused in a criminal trial, you have the right to a defence lawyer during all stages of criminal proceedings and the trial in court. In some situations, the State has an obligation to grant you a lawyer, free of charge.
Right to a lawyer
You have the right to hire a defence lawyer from the moment a criminal process has been initiated against you. This means that you may already choose a lawyer in the pre-trial stage of your case, that is, before the trial has started.
Your lawyer has a right to be present at different occasions during the pre-trial stage when you are involved in separate procedural activities. For example, your first interrogation as a suspect, during your detention review with the investigative judge or any other investigative action in which you are involved. If your lawyer is unavailable, and his/her presence is mandatory, your hearing will be postponed.
Your right to a defence lawyer continues at all stages of the proceedings (during the entire time you have the status of a detainee, a suspect or an accused). In Slovenia, only attorneys at law and attorney candidates can defend you at criminal proceedings.
State-paid lawyer
The state has an obligation to grant you a lawyer, free of charge, only:
- if it is in the interests of justice
- if you cannot afford to pay for legal aid yourself
In such cases, human rights demand that you should be given a free lawyer to ensure that you are not put in a worse situation than the prosecution and so that your participation in the trial is effective. Otherwise, this may result in a violation of your right to a fair trial.
example You will be entitled to a lawyer if your case is so complex that without the help of a lawyer you cannot meaningfully participate in the trial and understand what is happening in your case.
According to Slovenian law, if you cannot afford a lawyer, the state has a duty to provide you with a defence lawyer. Taking into account your financial situation the state can fully or partially waive the lawyer’s fee.
If a lawyer hasn’t been assigned to you and you genuinely cannot afford to hire one, you should ask the court to assign you a state lawyer and waive his/her fee. Even if you receive a refusal, you will be able to complain about a potential violation of your rights later in other national or international human rights institutions.
Effective defence
Defence lawyers must be able to provide legal assistance and defend you effectively. This means that you have to be given an opportunity to meet your lawyer in private and to call or write to him/her without surveillance.
If your lawyer is not fulfilling his/her duties properly, the court will not be responsible for such failure. In that case you have the right to change your lawyer or request a new one where the lawyer has been assigned by the state.
Right to choose or change a lawyer
Generally, you can freely choose your own lawyer and pay for his or her services yourself. But, neither do you lose your right to choose a lawyer if legal aid is granted to you by the state. This means that if you cannot work with the lawyer assigned to defend you for some reason, you have a right to request a different one from the State.
Right to refuse a lawyer
You also have the right not to use a lawyer. However, there are some cases where the presence of a defence lawyer is mandatory. For example, in:
- cases against a minor
- proceedings concerning compulsory medical treatment
- cases where the accused is detained in remand
- cases where the charge is for a criminal offence punishable by 30 years of imprisonment or life imprisonment (mandatory defence already at 1st hearing)/ 8 years of imprisonment (mandatory defence at the time the indictment is served to the accused)
- cases where the accused is deaf, mute or otherwise incapable to defend him/herself (for example, suffering from a mental or physical health impairment that prevents the full use of his/her procedural rights)
The presence of a defence lawyer at your trial does not mean that you may choose to be absent at the hearings with no explanation, nor that you can be denied the opportunity to be present in the courtroom.