–2–
right of access to a lawyer are justified should be assessed on a case-by-case basis, not determined
by the category of offence involved.2
22.
The CPT fully recognises that it may exceptionally be necessary to delay for a certain period
a detained person’s access to a lawyer of his choice. However, this should not result in the right of
access to a lawyer being totally denied during the period in question. In such cases, access to
another independent lawyer who can be trusted not to jeopardise the legitimate interests of the
investigation should be organised. It is perfectly feasible to make satisfactory arrangements in
advance for this type of situation, in consultation with the local Bar Association or Law Society.
23.
The right of access to a lawyer during police custody must include the right to meet him, and
in private. Seen as a safeguard against ill-treatment (as distinct from a means of ensuring a fair
trial), it is clearly essential for the lawyer to be in the direct physical presence of the detained
person. This is the only way of being able to make an accurate assessment of the physical and
psychological state of the person concerned. Likewise, if the meeting with the lawyer is not in
private, the detained person may well not feel free to disclose the manner in which he is being
treated. Once it has been accepted that exceptionally the lawyer in question may not be a lawyer
chosen by the detained person but instead a replacement lawyer chosen following a procedure
agreed upon in advance, the CPT fails to see any need for derogations to the confidentiality of
meetings between the lawyer and the person concerned.
24.
The right of access to a lawyer should also include the right to have the lawyer present
during any questioning conducted by the police and the lawyer should be able to intervene in the
course of the questioning. Naturally, this should not prevent the police from immediately starting to
question a detained person who has exercised his right of access to a lawyer, even before the lawyer
arrives, if this is warranted by the extreme urgency of the matter in hand; nor should it rule out the
replacement of a lawyer who impedes the proper conduct of an interrogation. That said, if such
situations arise, the police should subsequently be accountable for their action.
25.
Finally, in order for the right of access to a lawyer during police custody to be fully effective
in practice, appropriate provision should be made already at this early stage of the criminal
procedure for persons who are not in a position to pay for a lawyer.
2
Reference might be made here to the judgment of the European Court of Human Rights in the case of Salduz
v.Turkey (27 November 2008), in which the Court found that “… Article 6§1 [of the European Convention on Human
Rights] requires that, as a rule, access to a lawyer should be provided…, unless it is demonstrated in the light of the
particular circumstances of each case that there are compelling reasons to restrict this right.” (paragraph 55).