–3–
widely recognised in countries visited by the CPT; in those few countries where the right does not
yet exist, plans are afoot to introduce it.
41.
However, in a number of countries, there is considerable reluctance to comply with the
CPT’s recommendation that the right of access to a lawyer1 be guaranteed from the very outset of
custody. In some countries, persons detained by the police enjoy this right only after a specified
period of time spent in custody; in others, the right only becomes effective when the person
detained is formally declared a “suspect”.
The CPT has repeatedly stressed that, in its experience, the period immediately following
deprivation of liberty is when the risk of intimidation and physical ill-treatment is greatest.
Consequently, the possibility for persons taken into police custody to have access to a lawyer during
that period is a fundamental safeguard against ill-treatment. The existence of that possibility will
have a dissuasive effect upon those minded to ill-treat detained persons; further, a lawyer is well
placed to take appropriate action if ill-treatment actually occurs. The CPT recognises that in order to
protect the legitimate interests of the police investigation, 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 should be arranged.
The right of access to a lawyer must include the right to talk to him in private. The person
concerned should also, in principle, be entitled to have a lawyer present during any interrogation
conducted by the police. Naturally, this should not prevent the police from questioning a detained
person on urgent matters, even in the absence of a lawyer (who may not be immediately available),
nor rule out the replacement of a lawyer who impedes the proper conduct of an interrogation.
The CPT has also emphasised that the right of access to a lawyer should be enjoyed not only
by criminal suspects but also by anyone who is under a legal obligation to attend - and stay at - a
police establishment, e.g. as a “witness”.
Further, for the right of access to a lawyer to be fully effective in practice, appropriate
provision should be made for persons who are not in a position to pay for a lawyer.
42.
Persons in police custody should have a formally recognised right of access to a doctor. In
other words, a doctor should always be called without delay if a person requests a medical
examination; police officers should not seek to filter such requests. Further, the right of access to a
doctor should include the right of a person in custody to be examined, if the person concerned so
wishes, by a doctor of his/her own choice (in addition to any medical examination carried out by a
doctor called by the police).
All medical examinations of persons in police custody must be conducted out of the hearing
of law enforcement officials and, unless the doctor concerned requests otherwise in a particular
case, out of the sight of such officials.
It is also important that persons who are released from police custody without being brought
before a judge have the right to directly request a medical examination/certificate from a recognised
forensic doctor.
1
The CPT has subsequently published a more detailed section on “access to a lawyer as a means of preventing
ill-treatment”; see paragraphs 18-25 of the 21st General Report (CPT/Inf (2011) 28).