Securing access of detainees to lawyers
- Author(s):
- Parliamentary Assembly
- Origin
- Text
adopted by the Standing Committee, acting on behalf of
the Assembly, on 10 March 2017 (see Doc. 14267, report of the Committee on Legal Affairs and Human
Rights, rapporteur: Ms Marietta Karamanli).
1. The Parliamentary Assembly emphasises
the importance of the right to the assistance of a defence counsel
in criminal cases, as enshrined in Article 6.3.c of the European Convention on
Human Rights (ETS No. 5, “the Convention”). It reiterates that this
right comprises the possibility for defendants to defend themselves,
to be assisted by a defence counsel of their own choosing or to
be provided with the assistance of an officially appointed lawyer
free of charge if they do not have sufficient means and when the
interests of justice so require.
2. The Assembly notes that the implementation of the right to
the assistance of a defence counsel is an intrinsic part of the
right to a fair trial guaranteed by Article 6.1 of the Convention
and the principles of the rule of law. It stresses that respect
for this right is fundamentally important for persons deprived of
their liberty, whatever the nature of that deprivation.
3. In its
Resolution
2077 (2015) on the abuse of pretrial detention in States
Parties to the European Convention on Human Rights, the Assembly
had called on member States to ensure greater equality of arms between
the prosecution and the defence by allowing defence lawyers unfettered
access to detainees, granting them access to the investigation file
and providing sufficient funding for legal aid.
4. The Assembly notes that limitations to this right may infringe
other rights and freedoms guaranteed by the Convention, such as
the right to life, the right not to be subjected to torture or inhuman
or degrading treatment or punishment or the right to appeal against
the initial decision on deprivation of liberty. It emphasises that
guaranteeing detainees the right to access a lawyer can be a vital
means of preventing torture or inhuman or degrading treatment or
punishment within the meaning of Article 3 of the Convention.
5. The Assembly stresses that it is crucially important for a
detainee to have access to a lawyer from the outset of the detention
– whatever the nature of the offence and whether it be minor or
major – in order to guarantee that the rights of defence are practical
and effective rather than theoretical and illusory. It is often
at the very start of the detention that the risk of abuse in order
to obtain confessions in the absence of a lawyer and/or under duress
is highest.
6. The Assembly therefore calls on the member States to:
6.1 guarantee the effective access
of suspects, accused and convicted persons (deprived of liberty or
not), as well as participants in the criminal proceedings, to a
lawyer of their choice at any stage of criminal proceedings, especially
from the outset of custody or of any other measure involving deprivation of
liberty – including the administrative detention of migrants and
asylum seekers – and not only at the beginning of the police interview,
and to guarantee that access throughout the proceedings; ensure
that sufficient and reasonable time is always allocated to allow
a lawyer to arrive at any scene where investigative activities,
in particular searches, are being conducted; and abolish unjustified
restrictions on the number of defence lawyers;
6.2 ensure the confidentiality of lawyer–client communications
in all circumstances and, in this connection, ensure that all places
of detention have the infrastructure necessary to enable detainees
to speak to their lawyers in private;
6.3 guarantee the presence of a lawyer during detainee hearings,
including in connection with the detention of foreign nationals;
6.4 set up, where necessary, a system of free legal aid, which
is a fundamental guarantee of the effectiveness of the right to
access a lawyer, and to allocate appropriate funds for this purpose;
6.5 introduce, if such a system does not already exist, an
independent national system for designating officially appointed
lawyers, as a means of preventing abuses and in order to avoid direct contact
in advance between the investigator and the potential lawyer;
6.6 repeal, if need be, procedural provisions stating that
lawyers need the prosecutor’s or the investigator’s permission to
meet their clients;
6.7 ensure that any exception to the presence of a lawyer
is subject to very strict conditions. Such an exception must be
limited in time and be subject to the authorisation or supervision
of a court responsible for guaranteeing individual freedom, including
in connection with the fight against terrorism and the implementation
of exceptional measures;
6.8 introduce effective remedies in the event of the absence
of, or an obstacle to, detainees’ access to a lawyer.
7. The Assembly stresses that self-incriminating testimony obtained
in the absence of a lawyer, or if access to a lawyer has been impeded,
should in no case be accepted as valid evidence before a court or
serve as a basis for convicting a defendant.
8. In addition, the Assembly calls on member States to investigate
promptly, effectively and entirely independently all allegations
of threats to, intimidation of or violence against lawyers, including
allegations of murder.
9. In the light of restrictions on the right of access to a lawyer
imposed by some member States in the context of the fight against
terrorism and in a state of emergency, the Assembly reminds member
States that a state of emergency is an exceptional situation that
should not persist and should be lifted as early as possible in
order to return to the application of ordinary law. The Assembly
insists that the effective access of suspects, accused and convicted
persons (deprived of liberty or not), as well as participants in
criminal proceedings, to a lawyer of their choice can be limited
only in cases of derogation in times of emergency under the provisions of
Article 15 of the European Convention on Human Rights. It also calls
on national parliaments to establish parliamentary scrutiny of a
state of emergency where applicable. It further calls on them to
improve the ex ante judicial
review of measures restricting individual freedoms. Lastly, it would
like decisions on implementing and renewing such measures to be
assessed and reviewed in terms of the extent to which they are appropriate, necessary
and proportionate with regard to the aims they are intended to pursue.
10. The Assembly calls on member States to continue to co-operate
with the European Committee for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment (CPT) and authorise the publication of
the reports of the CPT’s visits as early as possible.
