2.2.6 Access to legal counsel Condensed: All persons arrested or detained, with or without criminal charge, shall have prompt access to a lawyer. Such access to legal counsel may take place face to face, on the telephone, or in writing. Meetings or telephone calls may take place within the sight, but not within the hearing, of others. A detainee's access to a legal counsel may be limited or suspended in exceptional circumstances, to be specified by law or lawful regulations, when it is considered indispensable by a judicial or other authority in order to maintain security and good order. However, even when such exceptional circumstances exist, access to legal counsel shall not be denied for more than a matter of days. Communications between a legal counsel and his clients are confidential. Comprehensive: The Basic Principles on the Role of Lawyers provide that ‘all persons arrested or detained, with or without criminal charge, shall have prompt access to a lawyer, and in any case not later than forty-eight hours from the time of arrest or detention.’[1] The right of all persons deprived of their liberty to communicate with and be visited by legal counsel is also provided for in the International Convention for the Protection of All Persons from Enforced Disappearance.[2] The right to access to legal counsel is important in order to secure the right to challenge the lawfulness of detention as provided for in article 9(4) of the ICCPR and similar provisions in regional human rights treaties. (See *right to challenge the legality of detention*). In Öcalan v Turkey, Mr Öcalan was detained for ten days without any access to the outside world. The ECtHR held:[3] [T]he conditions in which the applicant was held and notably the fact that he was kept in total isolation prevented him using the remedy personally. He possessed no legal training and had no possibility of consulting a lawyer while in police custody. Yet, as the Court has noted above ..., the proceedings referred to in Article 5 § 4 must be judicial in nature. The applicant could not reasonably be expected under such conditions to be able to challenge the lawfulness and length of his detention without the assistance of his lawyer. With regard to persons arrested on a criminal charge the right to access to counsel is provided for in article 14(3)(b) of the ICCPR. (See *defense counsel of choice/right to defend oneself*). A detainee's access to a legal counsel may be limited or suspended ‘in exceptional circumstances, to be specified by law or lawful regulations, when it is considered indispensable by a judicial or other authority in order to maintain security and good order’.[4] However, even when such exceptional circumstances exist, access to legal counsel ‘shall not be denied for more than a matter of days.’[5] The UN Special Rapporteur on Torture has recommended that anyone who has been arrested ‘should be given access to legal counsel no later than 24 hours after the arrest’.[6] The HRC has pointed out that the right to communicate with legal counsel requires ‘counsel to communicate with the accused in conditions giving full respect for the confidentiality of their communications’.[7]State authorities have an obligation to respect such confidentiality and must allowed persons deprived of their liberty to meet and have confidential communications with their legal counsel, whether face to face, on the telephone, or written. Meetings or telephone calls may take place within the sight, but not within the hearing, of others.[8]
[1]Basic Principles on the Role of Lawyers principle 7. See also HRC General Comment 20 para 11. [2]Art 17(2)(d). [3]Öcalan v Turkey Application 46221/99 (ECtHR (GC) 2005) para 70 quoting the chamber judgment. [4] Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Body of Principles) principle 18(3). [5]Body of Principles principle 15. [6]Special Rapporteur on Torture, E/CN.4/1995/34 (1995) para 926. See as well Body of Principles 15. [7] HRC General Comment 13 para 9. SMR art 93; Body of Principles principle 18; Basic Principles on the Role of Lawyers principle 22. [8] Basic Principles on the Role of Lawyers 18; SMR 93. See also Brennan v UK application 39846/98 (ECtHR 2001) paras 38-40; Moiseyev v Russia application 62936/00 (ECtHR 2008) para 209.
Condensed:
All persons arrested or detained, with or without criminal charge, shall have prompt access to a lawyer. Such access to legal counsel may take place face to face, on the telephone, or in writing. Meetings or telephone calls may take place within the sight, but not within the hearing, of others. A detainee's access to a legal counsel may be limited or suspended in exceptional circumstances, to be specified by law or lawful regulations, when it is considered indispensable by a judicial or other authority in order to maintain security and good order. However, even when such exceptional circumstances exist, access to legal counsel shall not be denied for more than a matter of days. Communications between a legal counsel and his clients are confidential.
Comprehensive:
The Basic Principles on the Role of Lawyers provide that ‘all persons arrested or detained, with or without criminal charge, shall have prompt access to a lawyer, and in any case not later than forty-eight hours from the time of arrest or detention.’[1] The right of all persons deprived of their liberty to communicate with and be visited by legal counsel is also provided for in the International Convention for the Protection of All Persons from Enforced Disappearance.[2]
The right to access to legal counsel is important in order to secure the right to challenge the lawfulness of detention as provided for in article 9(4) of the ICCPR and similar provisions in regional human rights treaties. (See *right to challenge the legality of detention*). In Öcalan v Turkey, Mr Öcalan was detained for ten days without any access to the outside world. The ECtHR held:[3]
[T]he conditions in which the applicant was held and notably the fact that he was kept in total isolation prevented him using the remedy personally. He possessed no legal training and had no possibility of consulting a lawyer while in police custody. Yet, as the Court has noted above ..., the proceedings referred to in Article 5 § 4 must be judicial in nature. The applicant could not reasonably be expected under such conditions to be able to challenge the lawfulness and length of his detention without the assistance of his lawyer.
With regard to persons arrested on a criminal charge the right to access to counsel is provided for in article 14(3)(b) of the ICCPR. (See *defense counsel of choice/right to defend oneself*).
A detainee's access to a legal counsel may be limited or suspended ‘in exceptional circumstances, to be specified by law or lawful regulations, when it is considered indispensable by a judicial or other authority in order to maintain security and good order’.[4] However, even when such exceptional circumstances exist, access to legal counsel ‘shall not be denied for more than a matter of days.’[5] The UN Special Rapporteur on Torture has recommended that anyone who has been arrested ‘should be given access to legal counsel no later than 24 hours after the arrest’.[6]
The HRC has pointed out that the right to communicate with legal counsel requires ‘counsel to communicate with the accused in conditions giving full respect for the confidentiality of their communications’.[7] State authorities have an obligation to respect such confidentiality and must allowed persons deprived of their liberty to meet and have confidential communications with their legal counsel, whether face to face, on the telephone, or written. Meetings or telephone calls may take place within the sight, but not within the hearing, of others.[8]
[1]Basic Principles on the Role of Lawyers principle 7. See also HRC General Comment 20 para 11.
[2]Art 17(2)(d).
[3] Öcalan v Turkey Application 46221/99 (ECtHR (GC) 2005) para 70 quoting the chamber judgment.
[4] Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Body of Principles) principle 18(3).
[5]Body of Principles principle 15.
[6]Special Rapporteur on Torture, E/CN.4/1995/34 (1995) para 926. See as well Body of Principles 15.
[7] HRC General Comment 13 para 9. SMR art 93; Body of Principles principle 18; Basic Principles on the Role of Lawyers principle 22.
[8] Basic Principles on the Role of Lawyers 18; SMR 93. See also Brennan v UK application 39846/98 (ECtHR 2001) paras 38-40; Moiseyev v Russia application 62936/00 (ECtHR 2008) para 209.