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40.
As from the outset of its activities, the CPT has advocated a trinity of rights for
persons detained by the police: the rights of access to a lawyer and to a doctor and the
right to have the fact of one's detention notified to a relative or another third party of
one's choice. In many States, steps have been taken to introduce or reinforce these rights, in
the light of the CPT's recommendations. More specifically, the right of access to a lawyer
during police custody is now 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 lawyer 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.
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