מוסד "הסנגור המלווה" (standby counsel) בישראל – בין הזכות לייצוג משפטי לבין הזכות לייצוג עצמי

The right to legal representation in criminal proceedings is a fundamental right in Israeli law. However, in cases where a defendant is not interested in legal representation, the fairness and efficiency of criminal procedure are violated. Until now, Israeli law has not provided any way of preventing these violations in cases where defendants and suspects have insisted on representing themselves. This article proposes a new legal model for such cases that will significantly reduce the violations discussed: the “standby counsel”. A standby counsel is an attorney appointed to assist a client who has invoked his/her right to self-representation. The standby counsel will provide guidance and advice to such a client during self-representation. As such, he/she will help to guarantee a fair and expeditious trial. Unlike a regular defense attorney, the standby counsel does not represent the defendant in court, but rather serves as an aide in his/her defense. He/she accompanies the defendant throughout the proceedings, assisting and advising on legal issues as they arise during the trial. The proposed standby counsel is therefore an attempt to establish a legal practice that balances two conflicting interests: the defendant’s right to legal representation in a criminal trial and the right to choose self-representation. Despite the theoretical and practical importance of the standby counsel, it has not yet been adopted in Israeli criminal procedure.The article discusses the question of whether it is appropriate to adopt the standby counsel in Israeli law and argues that the answer to this is affirmative. The use of standby counsel does, however, have disadvantages and it can raise complex dilemmas. The article seeks to address these difficulties, and to propose a balanced and innovative model that makes it possible to adopt the standby counsel in Israeli law. Finally, based in part on experience gained in foreign systems, the article outlines preliminary guidelines for establishing an appropriate model for the standby counsel in Israel.