I. Introduction
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence”. The Sixth Amendment to the United States Constitution
“Articolul 24: Dreptul la apărare
- Dreptul la apărare este garantat.
- În tot cursul procesului, părţile au dreptul să fie asistate de un avocat, ales sau numit din oficiu.” Constitutia Romaniei
Starting from these passages one may say that in the contemporary modern law, the right to assistance of a lawyer is part of the fundamental human rights. In other words, the obligation of the state to ensure the assistance of council should represent the interests of the parts throughout the entire trial. Therefore, one can affirm that the obligation to offer assistance of a lawyer can be seen as a way in which the state ensures and quarantees its citizens the right to assistance. This right falls in the category of the criminal law and with the time it was extended in the field of the civil law as well. However, the situations, in which the modern states ensured the fulfillment of a correct trial by respecting the right of assistance due to a lawyer who is chosen or appointed by the judge, were not the same as today. Nevertheless, even today the assistance of a lawyer is not compulsory in all the trials, as the states can impose limits within which it can offer assistance thorugh a lawyer.
Thus, from the very beginning we must distinguish between the right to be assisted by an appointed lawyer and the obligation of the state to ensure a lawyer on its expenses. As regards the latter case, this right was quaranteed without any restrictions by most of the modern states from the very beginning. Apart from this, the Constitution of the United States of America
“ Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.”
( http://www.un.org/en/documents/udhr/)
II. The right to the assistance of a lawyer in the US legislation. The Jurisprudence of the Supreme Court. The Gideon v. Wainwright case and further decisions
Gideon v. Wainwright, 372 U.S. 335 (1963) is the starting point in the USA as regards the judicial assistance of the state because it was the conclusion of a series of decisions of the Supreme Court which interpreted the provisions of the Sixth Ammendment from the US Constitution. The case was analysed by the Supreme Court in 1963,but the crime goes back to 1961, in Bay Harbor , Florida
As a result, this case is very important as it draws attention to the issue of the human rights and the representation of counsel which was quaranteed by the Sixth Ammendment. The explanation lies in the fact that the American law goes back to the English common law, which did not stipulate any right to counsel. But, with the passing of the time, this has changed due to the changes within the nature of the United States population and so the notion “right” gained another meaning, namely: “that of a poor person to have a lawyer that he didn’t have to pay for”(see Burke: 1982).
Thus, in Gideon case, the Supreme Court interpreted the provisions of the Sixth Ammendment as it follows: each citizen has the right to counsel even tough he is not able to pay the attorney. After his second conviction in front of the Supreme Court he was appointed an attorney to represent him and he found redress there. The result of this case was that in Florida
All in all, the Gideon case remains in the history of the Supreme Court jurisdiction as a fundamental case because it offered the humblest,poorest citizens of the United States of America the chance to get justice form a higher court in the territory. In addition to all these, it seems to be a vindication of the American legal system in giving the chance to the weak and poor to defend themselves.
III. The right to the assistance of a lawyer in the Romanian legislation. The legal constitutional provisions in the Code of Criminal Procedure
This is possible due to the right of defendance to which the accused and the other parties in a criminal trial are entitled. This right of defendance refers not only to the personal efforts of each side but also to the obligation of the judicial bodies which ensure that these rights are put into practice. The Constitution of Romania stipulates this law in art.24 and it states that this right is quaranteed throughout the entire process. A similar provision is to be found in the law nr. 92/1992 for the judicial organization.[2]
Another law, that is nr. 51/1995 defines the place and the role of the lawyer in the criminal case, Code of Criminal Procedure (art. 171-174), together with the art. 24 for the Constitution. If the art. 171 (1) stipulates that the accused or the defendant have the right to be assisted throughout the entire trial and it encompasses exact references about the obligatory legal assistance for under-aged persons[3]. Thus any type of action throughout the trial must be undertaken in the presence of the lawyer who assists the under-aged person otherwise it leads to total nullity. Above this, there are two more situations in which the assistance of the lawyer is compulsory, namely for sentences over 5 years and for life imprisonment.
However, it is believed that the right to the assistance of a lawyer is thought to be a procedural right of the accused and it functions as a procedural quarantee. That is why in the case of the under-aged persons, the protection ensured by a lawyer is obligatory as it foresees judicial errors.
IV. Conclusions
Finally, both the American and the Romanian legislations ensure the quarantee of the right to the assistance of a lawyer,as an obligatory defendance in some cases or as a counsel for the defendance appointed by the judge. On top of that, this right has an important role since it is stipulated in both constitutions and because this is extended before the beginning of the legal proceedings, when the attendance of a lawyer is obligatory. However, the limits difer from one state to another: in America the jurisdiction of the Supreme Court has an important word to say in this, while in Romania it is striclty stipulated in the law. To conclude, one may say that the American constitution is more flexible than the Romanian law as it is possible to be adapted more easily and quickly than our legal provisions.
Bibliography:
Burke, M. (ed.), 1982, The Supreme Court and Human Rights, Forum Series
Hunt, L., 2007, Inventing Human Rights, Norton&Company
Elliot, J. (ed.), 1992, Reader in American Government, Brown Publisher
