INTRODUCTION: Torture and other cruel, inhuman or degrading treatment or punishment (“ill-treatment”), in almost all cases, happen in secret. Access to lawyers, as well as to doctors, and contact with friends or family members creates a more open detention environment which helps to prevent torture and other ill-treatment. Incommunicado and secret detention create an atmosphere of impunity for human rights violations, and can even constitute torture or ill-treatment in themselves. The right to be protected from torture and other ill-treatment is a fundamental one from which no derogation is permitted.

This briefing note is intended to outline the current state of the law in relation to access to legal counsel promptly after deprivation of liberty as a safeguard against torture and other ill-treatment.

The function of the right of access to a lawyer for detainees is not only to prepare the defense in criminal cases, but also to provide an independent presence during detention and questioning (whether or not associated with criminal proceedings). The presence of a lawyer can help to ensure the detained person’s rights to safety and dignity are respected, and that the authorities do not exceed their legal powers. If a criminal process is set in train, the lawyer can also evaluate the police procedure for compliance with fair trial requirements (and intervene if necessary).

Articles 2 and 16 of the UN Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) require States Parties to take effective measures to prevent torture and other cruel, inhuman or degrading treatment or punishment. The experience of well-established preventive monitoring bodies such as the European Committee for the Prevention of Torture (CPT) shows that legislating for safeguards, such as prompt access to a lawyer, is one of the best ways for States to fulfill their obligation to take such effective measures. The UN treaty bodies the Human Rights Committee (HRC) and Committee Against Torture (CAT) have also specifically recognised this safeguard as essential for the prevention of torture and other breaches of fundamental human rights.

In short, a State has an obligation to establish safeguards for persons deprived of liberty – such as access to lawyers as described in this paper – if it is to meet the requirements of articles 2 and 16 of the UNCAT.

This paper is divided into sections examining various aspects of the right of access to lawyers. First, how does this safeguard actually protect those deprived of liberty? Secondly, what do we mean by “access” – is the mere presence of a lawyer in the police station sufficient? Thirdly, the timing – why does access need to be granted as soon as possible? Fourthly, can any restrictions legitimately be placed on this right, for example in relation to security concerns? Fifthly and finally, which countries already provide for access to lawyers in their legislation?