B Explanatory memorandum
by Ms Marietta Karamanli, rapporteur
1 Introduction
1.1 Procedure
1. The motion for a resolution
entitled “Securing access of detainees to lawyers” was referred
to the Committee on Legal Affairs and Human Rights on 22 June 2015. At its meeting in Strasbourg on
29 September 2015, the committee appointed me as its rapporteur.
On 21 June 2016, the committee heard three experts: Mr Mark Kelly,
member of the European Committee for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment (CPT) in respect of
Ireland; Ms Heather McGill, Amnesty International; and Ms Marie-Laure
Basilien-Gainche, Professor of Public Law at the University Jean
Moulin, Lyon 3 and member of the Trans Europe Experts Network. In
order to obtain more detailed information on certain counterterrorism laws
and on the state of emergency, I sent a letter to the heads of the
Belgian, French and Turkish delegations to the Assembly on 25 October
2016. I wish to thank them for their replies.
1.2 Issues
at stake
2. The above-mentioned motion
for a resolution focuses on access to a lawyer under the conditions
laid down by the European Convention on Human Rights (ETS No. 5,
“the Convention”) at all stages of proceedings, that is to say during
judicial proceedings and during imprisonment (for the purposes of
judicial proceedings in progress, especially pending cases, appeals
and complaints about conditions of detention). The authors of this
motion for a resolution are concerned that some member States are
restricting access to a lawyer by persons deprived of their liberty
at various stages of proceedings.
3. It should be reiterated that the right to access a lawyer
of one’s choice or be assisted free of charge by an officially appointed
lawyer when one cannot afford a defence counsel is enshrined in
Article 6.3.c of the Convention.
This right has two key functions: firstly, guaranteeing equality
of arms (understood as a balance in procedural conditions and the
means enabling a suspect or an accused or imprisoned individual
to assert his or her rights) and a fair trial; secondly, ensuring
the presence of an independent party who can help prevent ill-treatment
and accordingly safeguard the right to freedom and security
4. For the purposes of this report, the term “detainee” will
be understood in the broad sense of a “person deprived of his or
her liberty by a public authority”.
Note For the purposes of drawing
up this report, I submitted to the committee details of the various
international legal instruments that guarantee this right and of
its many constituent parts as interpreted by the European Court
of Human Rights (“the Court”). In the interests of brevity, I will
not go into these here as they are available in an information memorandum
(AS/Jur (2016) 34) on the committee’s website.
5. I will detail here the various stages of criminal procedure
and the restrictions observed on detainees’ right to access a lawyer.
I will also consider specific situations currently facing all Council
of Europe member States, namely: 1) access to a lawyer for all irregular
migrants and asylum seekers placed in administrative detention; and
2) this access for detainees in the context of a state of emergency
and the fight against terrorism. These are exceptions that by their
very nature amount to departures from the ordinary law governing
prosecutions. Lastly, I cannot overlook the situation in Turkey
since the attempted coup on 15 July 2016.
6. Despite the many differences between the member States with
regard to the regulations governing the right of access to a lawyer,
the international obligations remain the same for Council of Europe
member States: access to a lawyer from the police interview onwards
and during the first hours of deprivation of liberty; one’s own
choice of lawyer; the right to access the case files; the right
to legal aid; the right to an interpreter; the confidentiality of
communications; the effectiveness of the lawyer's assistance; and
waiving this right of access in accordance with clear principles
and procedures. International and European law regulates precisely
and in detail the right of access to a lawyer in criminal proceedings;
the regulations governing this right in cases of administrative
detention, especially the detention of irregular migrants and asylum
seekers, are not well-developed or are less detailed.
Note In
criminal proceedings, there has been some erosion of the right of
access to a lawyer in Europe in recent years in the context of anti-terrorism
legislation.
7. Access to a lawyer can also be restricted in a more insidious
way through intimidation of lawyers, with the aim of discouraging
them from defending certain detainees, especially human rights activists.
For example, in Azerbaijan these intimidation techniques have resulted
in limiting the number of lawyers willing to risk their safety to
defend certain detainees.
Note This
major problem was discussed in detail by Assembly member Mailis Reps
(Estonia, ALDE) in her report “Strengthening the protection and
role of human rights defenders in Council of Europe member States”
Note and
in previous Assembly documents on this subject.
Note This intimidation can, among other
things, take the form of judicial harassment, of various threats
that cast doubt on the lawyer’s moral standing, rights or, indeed,
independence, of prison sentences, or of dismissal from the bar.
By way of example, mention might be made of the case of Rasul Jafarov,
an Azeri human rights activist, and his lawyer, Mr Khalid Bagirov.
Note In that case, disciplinary
proceedings were instituted against Mr Bagirov and he was suspended
from the bar. The authorities also prevented him from meeting his
client in prison. The Council of Europe Commissioner for Human Rights,
as a third party, submitted written observations to the European Court
of Human Rights. He said that Mr Bagirov’s “disbarment exemplifies
a more general practice whereby lawyers are prevented from pursuing
their human rights defence work or punished for doing so, in blatant disregard
of Azerbaijan’s international obligations”.
Note Furthermore,
Elchin Sadigov, an Azeri lawyer who represents human rights defenders
such as Leyla Yunus and Anar Mammadli, reports that he has been repeatedly
threatened by the police. On 2 November 2016, threats were allegedly
made to him directly by a Ministry of the Interior investigator
warning him not to take up the allegations of torture and ill-treatment described
by his client, the journalist Fikret Farmazoglu.
Note Our former colleague
Michael McNamara (Ireland, SOC) also established how dangerous it
is to work in the North Caucasus part of the Russian Federation, summing
up the situation as follows in his report: “The situation of lawyers
in the North Caucasus is indicative of the overall system of justice
in the region: if lawyers, whose profession it is to defend others,
are unable to protect themselves from such human rights violations,
then what hope is there for their clients?” The draft resolution
pertaining to this states: “Lawyers defending victims of human rights
violations have themselves become targets of aggressions, intimidation
and trumped-up criminal charges in reprisal for their work.”
Note Assembly
Recommendation 2085 (2016) on strengthening the protection and role of human rights
defenders in Council of Europe member States contains a specific
sub-paragraph on lawyers who represent their clients before the
European Court of Human Rights and calls on the Committee of Ministers
to “hold regular exchanges of information with the Registry of the
European Court of Human Rights on reprisals or intimidation against
lawyers”.
8. As highlighted in the report by our colleague Marieluise Beck
(Germany, ALDE) on “Legal remedies for human rights violations on
the Ukrainian territories outside the control of the Ukrainian authorities” (
Doc. 14139), access to justice in these territories is extremely
worrying. The situation in the territories outside the control of
the Ukrainian authorities also clearly raises concerns regarding
detainees’ access to a lawyer. The Special Monitoring Mission to
Ukraine of the Organization for Security and Co-operation in Europe
(SMM/OSCE) notes that, in general, detainees in the self-proclaimed
“people’s republics” of Donetsk and Luhansk (“DPR” and “LPR”) have
only limited, if any, access to an effective judicial system. The
SMM/OSCE also reports that access to legal aid is
de facto limited to the territories
controlled by the Ukrainian authorities, as lawyers do not feel
safe travelling to the “DPR”.
Note
2 A right guaranteed at different stages
of criminal proceedings
9. The right of access to a lawyer
must be guaranteed at all stages of criminal proceedings, from the beginning
of the period in police custody. This requirement is reiterated
in Principle 1 of the United Nation’s Basic Principles on the Role
of Lawyers and in Article 6.3.c of
the Convention. I have noticed a tendency to restrict a detainee’s
access to a lawyer at different stages of criminal proceedings,
especially in the initial period of deprivation of liberty.
2.1 During
police custody
10. Access to a lawyer for persons
held by the police comprises the right to contact and consult a
lawyer without undue delay and, in principle, the right of the person
concerned to have the lawyer attend police interviews. The CPT clearly
promotes this access to a lawyer as a fundamental guarantee against
the ill-treatment of persons deprived of their liberty by the police
during a period in police custody.
Note
11. The Court has firmly established the requirement to grant
access to a lawyer when a person is questioned, especially by the
police, while held in police custody, and it severely limits the
exceptions to this principle. Failure to allow access to a lawyer
while in police custody is regularly penalised by the Court. In
2008, it delivered a significant judgment concerning the right of
persons placed in police custody to be assisted by a lawyer during
questioning from the moment of the first interview (
Salduz v. Turkey).
Note Charged
and then convicted for taking part in an unauthorised demonstration
in support of the PKK (the Kurdistan Workers’ Party), the applicant
had made a statement, without the presence of a lawyer, in which
he admitted guilt. In its
Dayanan v.
Turkey judgment, the Court made it clear that access
to a lawyer must be granted as soon as a person is taken into custody
and not only from the time questioning begins: “Indeed, the fairness
of proceedings requires that an accused be able to obtain the whole
range of services specifically associated with legal assistance.
In this regard, counsel has to be able to secure without restriction
the fundamental aspects of that person’s defence: discussion of
the case, organisation of the defence, collection of evidence favourable
to the accused, preparation for questioning, support of an accused
in distress and checking of the conditions of detention.”
Note
12. The
Salduz case law
has strengthened the right of access to a lawyer and had a positive
impact on the legislation of several Council of Europe member States:
Belgium, France, Ireland, Monaco, the Netherlands, the United Kingdom
(Scotland) and Turkey, the country directly concerned by the judgment.
According to the new Turkish Code of Criminal Procedure, which entered
into force on 1 July 2015, a suspect or accused person has the right
to consult a lawyer privately before being questioned and the right
to have a lawyer present during police interviews. Similarly in
Belgium, parliament passed a law on 13 August 2011 (referred to
as the “Salduz Act”) providing for any person questioned and deprived
of his or her liberty to have certain rights, such as the right
to consult and be assisted by a lawyer. This Belgian law was followed
by measures to make these rights effective, including the adaptation
of the State legal aid system. The Netherlands Supreme Court has
adjusted its case law to bring it into line with the decision of
the European Court of Human Rights in
Salduz and
held in a judgment of 30 June 2009
Note that a suspect has the right to consult
a lawyer before being questioned and that arrested minors are entitled
to have a lawyer present during questioning.
Note Scottish criminal
law has also been amended to bring it into line with the
Salduz judgment and now requires
the police to give arrested persons the opportunity to consult a
lawyer before being interviewed, as was already the case in the
rest of the United Kingdom.
Note In Monaco, the Act of 25 June 2013
laid down the requirement that a lawyer be present from the beginning
of the period in police custody. The
Salduz judgment
was also taken into account in the European Union directive on the
right of access to a lawyer.
Note
13. During the hearing before the committee, Heather McGill, of
Amnesty International, emphasised the practical difficulties faced
by lawyers when trying to gain access to their clients held in police
custody in Russia. In particular, she pointed out that access was
conditional upon written confirmation that they had been retained as
defence lawyers, on the basis of which the prosecutor could permit
them to meet their clients. Even when that permission was granted,
lawyers often had to queue for hours owing to the lack of proper
meeting rooms at remand centres. Ms McGill mentioned the example
of Pyotr Pavlensky, who was unable to meet his lawyers from December
2015 to 26 February 2016 even though his lawyers had queued on several
occasions in front of the Butyrka remand centre where he was being
held. The case of Stanislav Klykh, sentenced to 20 years for allegedly
organising a group of armed volunteers to fight in Chechnya in 1994-1995,
also speaks for itself: he had no access to a lawyer during his
ten months of detention from August 2014 to June 2015. The lawyer retained
by his family was never able to find out from the authorities where
his client was being held and the officially appointed lawyer was
not present at any of the interrogations (even though her signature
is to be found on the interrogation reports despite the fact that
she was officially on maternity leave on those dates). Mr Klykh claims
that he was tortured and forced to “confess” during these interrogations.
Note On the day Mr Klykh
was sentenced, the judge expressed the opinion that his lawyers
should be dismissed from the bar for breaching its code of ethics
(because one was allegedly absent from one of their client's hearings
and the other for raising her voice against the prosecutor and the
judge at another hearing).
14. According to the Amnesty International expert, these practices
are not specific to Russia but are also widespread in other countries
in the region. Amnesty International reports that lawyers in Azerbaijan
often have access to their clients only 48 hours or more after their
arrest, during which period their clients are questioned, threatened
and pressured into signing “confessions”.
Note The case of the student
Khalid Khanlarov is an illustration of this: he was arrested after
creating, with a friend, a Facebook page satirising the government.
He refused to reveal the identity of the page administrators and
was then detained on remand for refusing to co-operate with the
police. His defence lawyer was prevented from visiting him in prison
for over a week. Mr Khanlarov claims to have been threatened and
beaten during this period and forced to give the names of the administrators
of the Facebook page in question.
Note Elvin
Abdullayev, arrested and questioned by the police about his political
activism and Facebook posts, had no access to his lawyer for 48
hours, during which period he was subjected to ill-treatment by
the police and forced to renounce his political convictions and
agree to stop putting critical posts on Facebook. Rovshan and Rufat
Zahidov (a cousin and nephew respectively of Ganimat Zahid, editor-in-chief
of
Azadliq, a major opposition
newspaper), who were arrested for drug possession and trafficking,
also allege that they signed confessions under duress at the police
station, in the absence of their lawyer, who was unable to see them
during the first five days of their detention.
Note
2.2 During
pretrial detention/remand in custody and judicial proceedings
15. I will not go into detail on
this important subject, which has to a large extent been covered
in a report by Pedro Agramunt (Spain, EPP/CD) on “Abuse of pretrial
detention in States Parties to the European Convention on Human
Rights” (
Doc. 13863). In
Resolution
2077 (2015) accompanying that report, adopted in October 2015, the
Assembly encourages the States Parties to implement measures to
reduce pretrial detention by “ensuring greater equality of arms
between the prosecution and the defence, including by allowing defence lawyers
unfettered access to detainees, by granting them access to the investigation
file ahead of the decision imposing or prolonging pretrial detention,
and by providing sufficient funding for legal aid, including for proceedings
related to pretrial detention”.
16. Committee of Ministers
Recommendation
Rec(2006)13 establishes a set of minimum standards which must be
guaranteed during the period that the arrested person is remanded
in custody and includes precise standards with regard to the assistance
of a lawyer during such periods of detention,
Note including “access to documentation relevant
to (the decision to be taken) in good time” (paragraph 26), free
legal aid (paragraph 25.3) and an adequate opportunity to consult
with that lawyer in order to prepare the detainee’s defence (paragraph
25.2).
2.3 During
imprisonment
17. During imprisonment, that is
to say after a custodial sentence has been handed down, access to
a lawyer must be guaranteed to ensure the proper conduct of the
judicial proceedings underway, especially with regard to pending
cases, appeals and complaints about conditions of detention. In
a 2012 recommendation, the Committee of Ministers stated that “prison
staff shall ensure that prisoners can exercise their right to have regular
and adequate access to their lawyers and families throughout their
imprisonment”.
Note
18. In Turkey, at the İmralı Island prison, lawyers have, for
various reasons and pretexts, not been allowed to meet their clients,
in particular, since 27 June 2011, Abdullah Öcalan, the leader of
the PKK. On 21 June 2016, I spoke in Strasbourg to Abdullah Öcalan’s
lawyers about the difficulties they face in accessing their client.
According to the information they gave me, meetings between Mr Öcalan
and his lawyers must always be authorised in advance, are subject
to strict restrictions in terms of their number and duration (one
hour a week) and are recorded. This is contrary to the law until
recently in force, which provided that meetings between a client
and his/her lawyer could take place without any limit on the number
of times and their duration.
Note They are not flatly denied access, but
it proves impossible each time they try, on various pretexts (such
as “the weather” allegedly preventing the boat from sailing to and
from the mainland).
Note In its
Öcalan
v. Turkey judgment in 2014, the European Court of Human
Rights observed that communication between Abdullah Öcalan and his
lawyers was subject to greater restrictions than that of persons
held in other prisons. It added on this point, however, that “while
persons deprived of their liberty for terrorist activities cannot
be excluded from the scope of the provisions of the Convention and
the essence of their rights and freedoms recognised by the latter
must not be infringed, the national authorities can impose ‘legitimate
restrictions’ on them inasmuch as those restrictions are strictly
necessary to protect society against violence”.
Note Ms Josette
Durrieu (France, SOC), former rapporteur for the post-monitoring
dialogue with Turkey, noted that Abdullah Öcalan still did not have
access to his lawyers in spite of the ongoing domestic judicial
proceedings against him and proceedings before the European Court
of Human Rights.
Note The CPT has strongly
criticised this particular situation in several of its reports and
has called on the Turkish authorities to take the necessary measures
to ensure that all İmralı prison inmates are able to receive visits
from a lawyer if they so wish.
Note The
CPT travelled to the island of İmralı on 28 and 29 April 2016. During
their visit, the CPT delegation examined the treatment and conditions of
detention of the four detainees, paying particular attention to
the implementation of their right to receive visits from their lawyers.
Note The Turkish
authorities have so far failed to authorise the publication of the
CPT’s report, which is regrettable.
19. Another worrying fact is that it seems that measures restricting
the right of access to a lawyer applied for a long time specifically
at İmralı have now been imported into other prisons. The prisoners
Nasrullah Kuran and Çetin Arkaş have been transferred from İmralı
to Silivri No. 9 prison, in Istanbul province, in which restrictions on
visits were also implemented before the attempted coup on 15 July
2016 (meetings only once a week, after prior authorisation from
the prison administration).
Note
2.4 Witness
status
20. Most of the legislation in
force in Council of Europe member States is based on the principle
of voluntary testimony. However, like the status of “material witness”
in the United States, some laws enable a witness to be forced to
testify, even at a police station. In addition to the risk of intimidating
potential witnesses, this system may result in the “detention” of
individuals at police stations in order to hear them as witnesses.
They are not officially held in police custody but their “detention”
may last for several hours, or even days, and here the procedural
safeguards for witnesses are particularly limited. This is all the
more worrying because some witnesses may become suspects after being
questioned as witnesses without being given proper procedural guarantees
during that period.
Note This
was still recently the case in Georgia, and the Commissioner for
Human Rights was concerned about the postponement of the entry into
force of the reform providing for the abolition of the compulsory
questioning of witnesses before a case comes to court.
Note On
20 February 2016, the reform of the Code of Criminal Procedure adopted
by the Georgian Parliament in December 2015 entered into force. This
reform prohibits the practice of forced interrogations. In France,
the Code of Criminal Procedure provides that “if the needs of the
investigation so require” witnesses may, under the rules on questioning
individuals without their being formally taken into police custody
(“
audition libre”), be detained
“for the time strictly necessary for them to be heard, this period
not to exceed four hours” (Article 62). If plausible reasons were
to emerge during the questioning for believing that the person heard
is a suspect, he or she could then only be held under the police
custody regime. After a change in the law, it has been compulsory
since 1 January 2015 for any summons to an
audition
libre to mention the right of the person concerned to
be assisted by a lawyer from the start of the proceedings, and to
be granted legal aid (which was not the case in the past).
Note
21. I also note with some concern the practice of calling lawyers
as witnesses in cases in which they defend an accused. Their status
as witnesses obliges them to relinquish the case and they can therefore
no longer defend their client(s). This practice was brought to my
notice in particular with regard to Bosnia and Herzegovina. An application,
of which the applicant has forwarded to me a copy, is currently
pending before the European Court of Human Rights.
Note The
applicant complains about a violation of her right as a lawyer to defend
her clients. She was summoned as a witness in the same case by the
Bosnia and Herzegovina public prosecutor's office. She claims that
she was asked questions only of a procedural nature and none about
her clients’ alleged crime. She states that she was summoned as
a witness with the aim of disqualifying her as a lawyer in this
case and that this is not an isolated instance but a routine practice
at the public prosecutor’s office in order to disqualify defence
lawyers in certain cases.
3 The
administrative detention of irregular migrants and asylum seekers
and the right of access to a lawyer
22. The issue of access to a lawyer
is arising more and more frequently in the context of the administrative detention
of irregular migrants and asylum seekers. The European Court of
Human Rights has ruled on this question from the point of view of
Article 5.4 of the Convention, especially in
Rahimi
v. Greece,Note which concerned
the detention of an unaccompanied foreign minor at an adult centre.
In that particular case, it found a violation of that article, especially
as the applicant was in practice unable to contact any lawyer.
Note
23. Moreover, in its Twenty Guidelines on Forced Return, the Committee
of Ministers set out the procedural guarantees to which individuals
placed in detention are entitled, including the right to be informed
about the legal remedies available to them and the immediate possibilities
of contacting a lawyer.
Note
24. According to the CPT standards, “Immigration detainees should
– in the same way as other categories of persons deprived of their
liberty – be entitled, from the outset of their detention, to inform
a person of their choice of their situation and to have access to
a lawyer The CPT has observed that these requirements are met in
some countries, but not in others. … The right of access to a lawyer
should apply throughout the detention period and include both the
right to speak with the lawyer in private and to have him present
during interviews with the authorities concerned”.
Note The CPT notes that “[t]he right
of access to a lawyer should include the right to talk with a lawyer
in private, as well as to have access to legal advice for issues
related to residence, detention and deportation. This implies that
when irregular migrants are not in a position to appoint and pay
for a lawyer themselves, they should benefit from access to legal
aid”.
Note
25. The Assembly has considered this question on several occasions.
In its
Resolution 1707
(2010) on the detention of asylum seekers and irregular migrants
in Europe, it established that the “safeguards afforded to immigration
detainees who have committed no crime are often worse than those
of criminal detainees” and that “detainees’ access to lawyers is
limited”. It recommended that “detainees … be guaranteed effective
access to legal advice, assistance and representation of a sufficient
quality, and [that] legal aid … be provided free of charge”.
26. In addition, in June 2016, on the basis of a recent report
by our committee, the Assembly adopted
Resolution 2122 (2016) on administrative detention. The report by Lord Balfe
(United Kingdom, EC) covers the situation of administrative detention
for irregular migrants and asylum seekers and stresses in particular
the lack of procedural guarantees and speedy access to a lawyer
for people held in administrative detention.
Note
27. At the hearing before the committee, Ms Basilien-Gainche drew
attention to States' tendency to broaden the category of cases that
involve limitation or deprivation of liberty by administrative means,
thus reducing detainees’ procedural guarantees, especially their
access to a lawyer. In her opinion, access to a lawyer is often
little more than a simple list of telephone numbers, and getting
to a telephone may prove difficult. Moreover, when access to a lawyer
does exist it is virtually impossible for the conversation to take
place in complete confidentiality. Furthermore, deadlines for appealing
against expulsion measures and detention are relatively short, which
quite often makes access to a lawyer impossible in practice. According
to a recent Amnesty International report, in response to a decision
of the Belgian High Court of Justice the Minister for Immigration
suspended the fast-track asylum procedure in Belgium in July 2015,
under which a large number of asylum seekers had been detained and
had had very little time to consult lawyers or gather evidence to support
their claim.
Note
28. The CPT has also made concrete recommendations in this area.
For example, in its report published on 23 February 2016, it recommended
that the Swedish authorities change the law to ensure that all individuals placed
in detention under the Aliens Act have effective access to a lawyer
from the moment they are deprived of their liberty and at all stages
of the proceedings. According to current legislation, foreigners
held only have access to a lawyer in connection with the implementation
of a refusal-of-entry or expulsion order after they have been in
detention for three days.
Note As far as “the former
Yugoslav Republic of Macedonia” is concerned, the CPT has established
that the vast majority of detained foreign nationals did not have
access to legal aid at any stage of their proceedings because domestic
legislation provides that only asylum seekers are eligible for free legal
aid.
Note In its report on its visit
to Finland, the CPT points out that foreign nationals have access
to a lawyer after arriving at a detention centre but not when they
are in the custody of the police or border guards, even though the
initial interviews take place at this stage.
Note
29. The CPT travelled to Greece on two occasions in April and
July 2016 to investigate the situation of foreign nationals deprived
of their liberty in the recently established “Reception and Identification
Centres” (so-called “hotspots”), which lawyers and associations
for the defence of migrants’ rights have difficulty in accessing.
It paid particular attention to the legal safeguards provided to
these foreign nationals.
Note The CPT had also travelled to Turkey
in June 2015 to examine the treatment and conditions of detention
of foreign nationals detained under immigration legislation as well
as the procedures applied to them in the context of their detention
pending removal.
Note The
CPT’s reports on Greece and Turkey have not yet been published,
as the authorities have not requested their publication. It will
be interesting to read the CPT’s conclusions on the question of
access to a lawyer for foreign nationals held in administrative
detention. Overall, the CPT will no doubt need to give even greater
consideration to this question in a large number of member States
that are directly or indirectly affected by the current refugee
crisis.
4 Access
to a lawyer in connection with the fight against terrorism and during
a state of emergency
30. The challenges facing the member
States can justify restrictions to, and derogations from, access
to a lawyer only in limited circumstances and on a temporary basis.
The European Court of Human Rights recently gave a ruling on the
temporary restrictions to access to a lawyer during the police questioning
of the 21 July 2005 London bombers. It found there had been no violation
of the right of the three applicants to a fair trial and to access
to a lawyer, holding that there had been compelling reasons – in
that case preventing other suicide attacks – for temporarily restricting
their right to consult a lawyer. However, it did find a violation
of Articles 6.1 and 6.3.
c of
the Convention in respect of the fourth applicant, who had initially
been heard as a witness, and who had not been informed of his right
to remain silent and had had no access to a lawyer at the time he
had begun to incriminate himself.
Note
31. The Committee of Ministers states in a recommendation that
an emergency within the meaning of Article 15 of the Convention
should have no effect on the right of access to a lawyer:
“The
existence of an emergency in accordance with Article 15 of the European
Convention on Human Rights should not normally affect the right
of access to and consultation with a lawyer in the context of remand
proceedings.”Note
32. With regard to prosecutions for criminal terrorist acts, the
European Commission for Democracy through Law (Venice Commission)
considers that “access to a lawyer from the very beginning of the
proceedings would not only enhance the accused's right of defence,
but could also facilitate his or her collaboration with the judiciary
in a manner respectful of his fundamental rights”.
Note
33. In its
Resolution
2122 (2016) on administrative detention, the Assembly expresses
its concern that “administrative detention has been abused in certain
member States to … obtain confessions in the absence of a lawyer
and/or under duress” and encourages all member States “to make use
of available tools respecting human rights in order to protect national
security or public safety, and to prevent crimes, including acts
of terrorism”.
Note
34. In France, a state of emergency was declared on 14 November
2015 after the murderous attacks perpetrated in Paris the day before.
In January 2016, the National Bar Council came out strongly against extending
the state of emergency, firmly criticising its consequences for
the rights of the defence.
Note It was also concerned about another
draft law reinforcing the measures to combat organised crime and
its funding and strengthening the effectiveness of criminal proceedings
and procedural safeguards. It insisted that “in a preliminary investigation,
the exercise of defence rights must begin from the very moment a
measure is implemented against a suspect to interview, search or
seize property”. The state of emergency was extended once again
on 26 July 2016. During the hearing before the committee, Ms Basilien-Gainche
condemned the increasingly administrative nature of proceedings,
which are brought before the administrative court, which only carries
out an
ex post facto check
and conducts a limited review of the legality of measures.
Note Notwithstanding that he intervenes
after the fact, the judge of the administrative court cannot deal
with everything on his own and may generally prove to pay more attention
to public security requirements than the imperatives of individual
freedom. Ms Basilien-Gainche also voiced her concerns in the light
of the Council of State’s decision of 11 December 2015 that the
provisions of the French State of Emergency Act of 1955 do not specify
that there has to be a connection between the purpose of the declaration
of the state of emergency and the reasons for decisions taken on
the basis of its provisions.
Note The house
arrest, in the context of the state of emergency, of environmental
activists planning to demonstrate during COP21 caused some controversy.
Note According
to the expert, “some of the procedures examined were accompanied
by detention without any speedy access to a lawyer”.
Note More generally, the possibility
to have an emergency review by a judge before a decision of the
administrative authority should be strengthened. On 15 November
2016, the French President announced his intention to seek a further
extension of the state of emergency until the next presidential elections
scheduled for April and May 2017.
35. In reply to my letter, the head of the French delegation,
Mr René Rouquet (SOC), informed me that “the establishment of the
state of emergency has not led to any exceptions to the rules on
detainees’ access to a lawyer”. Quite the contrary: although Section
11 of
Law
No. 55-385 of 3 April 1955 on a state of emergency gives the authorities
the power to order searches at any location, it expressly excludes
places for “the professional activities of lawyers”. However, I
gather from the documentation sent to me by the French delegation
that the question of the presence of a lawyer (not compulsory) during
searches is the subject of discussion. I also note that Section
11 of Act No. 55-385 provides that persons placed in administrative detention
in the course of a search may, “for reasons related to the detention”
and on the decision of the Public Prosecutor, be denied the possibility
of asserting their right to have a police officer inform someone
of their choosing.
36. It is interesting to note that the French National Assembly
and the Senate have established parliamentary scrutiny of the state
of emergency through their respective Legal Committees. The report
of the National Assembly’s Legal Committee stresses the need for
“innovative parliamentary scrutiny”: “An emergency situation requires
emergency scrutiny”, “parliamentary scrutiny very quickly became
necessary as a factor of the legitimacy of this state of emergency”.
Note The
main aim of this parliamentary scrutiny is to obtain details from
the government on certain individual or general measures, such as
searches, house arrests, bans on demonstrations, etc.
37. In Belgium, numerous new counterterrorism laws and regulations
were passed following the attacks in Paris in November 2015 and
Brussels in March 2016. A report by Human Rights Watch (HRW) expresses concern
about the impact of these measures on fundamental rights.
Note As far as detainees’
access to a lawyer is concerned, HRW emphasises that a draft law
currently going through the federal parliament would triple (from
24 to 72 hours) the maximum period that police can detain suspects
without charge in terrorism-related cases. While Belgium’s “Salduz
Act” guarantees a suspect’s access to a lawyer during pretrial detention
in accordance with the Court’s case law, the draft law provides
that this contact does not have to take place until just before
the start of a police interrogation. According to HRW, that would
mean a suspect could remain without counsel for almost three days.
Note The
Belgian delegation states in its reply to my letter that the law relating
to certain rights of individuals subject to interrogation, passed
by the Chamber of Representatives on 10 November 2016,
Note transposes Directive 2013/48/EU on
the right of access to a lawyer in criminal proceedings and in European
arrest warrant proceedings
Note and
guarantees the right of access to a lawyer at all hearings, including
for persons in detention on remand. Section 6.9 adopts the wording
of the directive and provides for exceptions to the right to consult
a lawyer before the first interrogation and to the right to be assisted
by a lawyer at hearings “in the light of the particular circumstances
of the case” when one or more compelling reasons (mentioned in the
law) justify this.
Note
5 The
situation in Turkey following the attempted coup on 15 July 2016
38. As mentioned above, we are
currently witnessing a very serious and disconcerting erosion of
the principles and standards of the rule of law in Turkey. This
erosion, which began before the attempted coup on 15 July 2016 and
has already been condemned by our Assembly in
Resolution 2121 (2016),
Note has
since then taken on new proportions. The state of emergency, initially
declared on 20 July 2016 for a period of three months, was extended
for a further three months from 19 October 2016. Mass arrests, which
amount to large-scale purges, of tens of thousands of people,
Note have taken place and there is every
reason to believe that a number of these arrests were arbitrary.
Lawyers have said that they have been pressured not to represent individuals
suspected of belonging to the FETÖ/PDY (
Fetullahçı
Terör Örgütü/Paralel Devlet Yapılanması – Gülenist Terrorist
Organisation/Parallel State Structure) movement or are afraid of
being associated with it if they do so.
Note Dozens of lawyers
are reported to have been detained on suspicion of having links
to the FETÖ/PDY.
Note The
figures are very revealing and I refer here to the information memorandum
published by the Assembly’s Monitoring Committee.
Note A group of United
Nations experts, including the Special Rapporteur on the Independence
of Judges and Lawyers, Ms Monica Pinto, have called on Turkey to
respect the independence of the judiciary and the principles of
the rule of law, including in times of crisis. In particular, these experts
have urged the authorities to guarantee detainees access to the
lawyer of their choice.
Note In a memorandum published
in October 2016, the Commissioner for Human Rights condemned the
drastic restrictions to access to lawyers, as well as limitations
on the confidentiality of the client-lawyer relationship.
Note Some lawyers appointed to represent
detainees ultimately refused to do so for fear of reprisals.
Note Against
the background of extremely serious allegations of torture and the
inhuman or degrading treatment of detainees, the lack of access
to a lawyer is all the more worrying.
39. Since the declaration of the state of emergency, several decree-laws
have introduced limitations to detainees’ right to access a lawyer.
Decree No. 667 published on 23 July 2016 increased the duration
of legal detention without charge from four to 30 days. The reply
I received from the Turkish delegation stated that this increase
was necessary to deal with the sudden arrest of a very large number
of people. This period can apply in cases involving threats to State
security, to the constitutional order, to State secrets and national
defence and to terrorist crimes, as well as group crimes. The delegation
also emphasises that the maximum duration of 30 days provided for
has so far, it would appear, never been applied. The decree also
directly calls into question the principle of the confidentiality
of client-lawyer communications since it authorises officials to
be present during conversations between persons held in police custody
and their lawyers as well as to record and even interrupt those
conversations. Moreover, detainees are no longer free to appoint
a lawyer of their own choosing.
Note Another
decree, dated 27 July 2016, allows the prosecutor to limit a detainee’s
access to a lawyer during the first five days of detention.
Note According
to lawyers’ concurring testimonies, many people arrested have been
held incommunicado for several days without any contact with their
family and with no possibility of contacting a lawyer.
Note
40. The decree of 27 July 2016 allows prosecutors to order lawyers’
offices to be searched and documents seized without the prior decision
of a court.
Note
41. The Turkish delegation has provided me with detailed information
on changes to the law made by decree-laws, in particular by Decree-Law
No. 676 of 29 October 2016, on their implications for the right
to access a lawyer and on the procedure for declaring a state of
emergency. A state of emergency is declared by government decision,
which is submitted to the Grand National Assembly for approval.
42. A suspect’s right to communicate with his/her lawyer can indeed
be limited during the state of emergency, but the suspect may not
be questioned during this period. The aim of this measure is allegedly
to prevent the transmission of information for terrorism purposes
between suspects/detainees and terrorist organisations through lawyers.
In my view, excluding the lawyer at this stage eliminates an effective
means of preventing cases of torture or inhuman or degrading treatment
in the period preceding interrogations.
43. Moreover, owing to the very large number and scope of the
investigations concerning the FETÖ/PDY movement, legal representation
at hearings has been limited to three lawyers with the aim of guaranteeing
a fair trial without impeding prosecutions.
44. A lawyer subject to a criminal prosecution in progress or
suspected of terrorist crimes or crimes enumerated in Articles 220
and 314 of the Turkish Criminal Code (membership of criminal and/or
armed organisations) may be prohibited from representing a detainee
suspected/accused of committing the same crimes or a person convicted
of those crimes.
45. Section 59 of Law No. 5275 on preventive measures and the
enforcement of sentences has also been amended: in the event of
a threat to society or the prison administration or if there is
a risk of a person directing a terrorist or criminal organisation
or giving it orders or instructions, the following measures may
be implemented with regard to access to a lawyer by convicted persons
held in prison facilities: conversations between the convicted inmate
and his/her lawyer may be recorded (sound and/or video), an official
may be present at those conversations, and documents passed on may
be confiscated. The number and duration of conversations may also
be limited. These measures may be taken for a period of three months
(which may be extended) on the basis of a decision of the sentence-enforcement
judge made at the request of the Principal State Prosecutor. If
these rules are infringed during the conversations between a detainee
and his/her lawyers, the detainee’s contacts with them may be prohibited
for a period of six months, in which case another lawyer will be
officially appointed by the relevant bar association. The authorities
claim that the aim of these measures, which are subject to appeal,
is not to undermine the principle of the confidentiality of lawyer-client communications
but to prevent communications between FETÖ/PDY members through their
lawyers.
46. I do not share the view expressed by the Turkish delegation
in its reply that all the measures taken since the attempted coup
on 15 July 2016 have been “necessary, urgent and proportionate”.
The arguments concerning necessity and urgency, more than four months
after the attempted coup, seem to me to have lost some of their
relevance. As regards the matter of the proportionality of these
measures, it is highly likely that the European Court of Human Rights,
to which hundreds of applications have now been made in this connection,
will issue a ruling on this subject.
Note
47. Furthermore, the Turkish delegation states in its reply that
a number of the amendments made to legislation by the decree-laws
adopted in the state of emergency are of a permanent nature and
not limited to the state of emergency. Under the guise of the state
of emergency, the Turkish legislators are in the process of revising
laws, especially the Code of Criminal Procedure, and permanently
lowering the safeguards regarding human rights and the principle
of a fair trial, which is extremely disturbing.
48. We must ensure that the legislation once again complies with
international standards guaranteeing the rule of law and human rights
– especially those defined in the Venice Commission’s
Rule
of Law Checklist – and we must condemn these situations in the strongest
possible terms and call on the Turkish authorities to re-establish
the procedural guarantees of a fair trial by upholding human rights
and the principles of a State governed by the rule of law and conducting
effective, impartial and conscientious investigations without delay into
the allegations of torture, inhuman or degrading treatment and,
indeed, deaths in detention. I fully endorse the recent appeal made
by the Assembly’s Monitoring Committee in a statement calling for
“the state of emergency to be lifted at the earliest possible date”.
Note
6 Conclusions
49. This report reiterates that
access to lawyers must be guaranteed under the conditions laid down
by the European Convention on Human Rights from the outset of police
custody and at each stage of criminal proceedings. It also examines
the question of detainees’ access in practice to a lawyer in three
specific contexts of particularly topical relevance: access to a
lawyer in migration situations; the fight against terrorism; and
the worrying situation in Turkey since the attempted coup of 15
July 2016. These three topical issues warrant our full attention.
50. This report highlights the situation of lawyers in Council
of Europe member States. Their role as guarantors of the rights
of defence and a fair trial, and of the prevention of torture or
inhuman or degrading treatment, should not be underestimated. Access
to a lawyer may be impeded or refused either directly (for example
by delaying access) or indirectly (when lawyers are targets of intimidation
or threats or prosecuted with the aim of disqualifying them).
Note
51. Difficulties in accessing a lawyer are real and commonplace
in the context of the administrative detention of irregular migrants
and asylum seekers. The CPT focused in particular on this important
question during its recent visits to Greece and Turkey and it is
regrettable that the reports have not yet been made public.
52. The fight against terrorism obliges governments and legislators
to take exceptional measures but that should not be done at the
expense of the right to a fair trial. Emergency situations should,
however, receive special attention from national parliaments, which
should establish parliamentary scrutiny of a state of emergency.
It is necessary to ensure that these situations are not exempt from
proper procedural safeguards. The authorities must not resort to
arbitrary detention and ignore human rights and the principles of
the rule of law, especially by resorting to inappropriate administrative
procedures or blocking access to a lawyer by various means. As she
so pertinently pointed out in a
statement, Anne Brasseur, then President of our Assembly, said:
“Human rights should not be sacrificed on the altar of the fight
against terrorism – this is precisely what the terrorists want!”
53. As far as Turkey is concerned, obstacles to access to a lawyer
of individuals arrested after the attempted coup are being reported
in large numbers. Under the guise of the state of emergency, the
Turkish Parliament is severely and permanently restricting the guarantees
of a fair trial. In my opinion, the amendments made lack precision
and open up the possibility of very broad interpretations. In view
of the present situation, we may legitimately ask whether any lawyers
able to defend individuals arrested or prosecuted after the attempted
coup will remain, other than officially appointed lawyers. I therefore
urgently call for the state of emergency to be lifted as quickly
as possible.
54. The European Court of Human Rights has detailed in its case
law the aspects of the right of access to a lawyer and reiterated
on numerous occasions the lawyer’s fundamental role in a fair trial.
This report makes it clear that this access cannot always be taken
for granted. On the contrary, it is often directly impeded either by
law or in practice. A number of practical proposals for recommendations
are therefore set out in the draft resolution with the aim of strengthening
and guaranteeing this right in all circumstances. In its resolution,
the Assembly should reiterate the crucial importance of detainees’
effective access to a lawyer from the outset of custody – whatever
the nature of the offence and whether it be minor or major – in
order to guarantee that the rights of defence are substantial and
effective rather than theoretical and hypothetical.
