including necessary accommodations for de-
ill-treatment,97 the UN Human Rights Committee has
tainees with disabilities.94
clearly stated that even in declared states of emergency, states cannot, under any circumstances, arbitrarily
b. Persons deprived of liberty receive information
deprive people of liberty or deviate from fundamental
on how to contact the NPM, other monitoring
fair-trial principles.98 Suspension of judicial hearings can-
bodies and relevant complaint mechanisms,
not be absolute, as urgent matters, such as habeas
promptly and confidentially. NPMs, ombuds
corpus cases must continue to be heard.99
95
institutions and other specialized organizations
should disseminate their contact information
Therefore, monitoring bodies should verify whether:
among detainees and within detention facilities,
through posters, flyers or mailboxes in places
a. Arrangements are made to maintain and se-
accessible to detainees.
cure the ability to meet with legal counsel,100 at
least through phone communication or other
3. LEGAL AND PROCEDURAL SAFEGUARDS AND FAIR-
electronic means, such as videoconferencing,
TRIAL RIGHTS
and that it is facilitated by being made available
free of charge.101
Restrictions on access to and contact with persons
deprived of liberty also negatively impact legal and pro-
b. These arrangements are put in place in a way
cedural safeguards against torture and other ill-treat-
that ensures the strict confidentiality of such
ment, affect fair-trial rights and can lead to an increase
privileged communication. Persons deprived of
in arbitrary detention. Preventive measures cannot be
liberty should have access to secure spaces for
used as a pretext to erode rights and guarantees of
confidential discussions that cannot be heard
96
persons deprived of their liberty. While some modifica-
by members of staff. Remote communication
tions (e.g., use of videoconference or telephone, use of
channels should be secure to avoid interception
physical and/or personal protective equipment) may be
or recording of calls.102
necessary, the rights to legal aid and legal representation, for instance, must remain effective (including for
c. Procedural rules and guidelines were issued
those detained in quarantine centres and migration de-
by the judicial system regarding court hearings
tention). The same goes for the prohibition of arbitrary
and judicial proceedings, and that those rules
detention (including in the migration context, and for
do not lead to an absolute suspension of all
psychiatric patients) and the right to a fair trial. As it is
judicial hearings.103
the case for the absolute prohibition against torture and
94 Information about requests and complaints should be made available “in both written and oral form, in Braille and easy-to-read
formats, and in sign languages for deaf or hard-of-hearing individuals”, and it should be displayed “prominently in all places of
deprivation of liberty”. In UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Interim
report to the General Assembly, 9 August 2013, A/68/295, para. 80.
95 SPT, Advice to States and NPMs, para. 13.6.
96 For specific guidance on legal safeguards in the context of covid-19, see IASC, Interim Guidance (at pages 3, 5); SPT, Advice to
States and NPMs (at para. 9); PRI, Briefing note (at p. 8); CPT, Statement of Principles (principle 9).
97 Statement of the UN High Commissioner for Human Rights and OHCHR “Emergency Measures and COVID-19 Guidance”, 27
April 2020: “…Certain rights, including the right to life, the prohibition against torture and other ill-treatment, and the right not to be
arbitrarily detained continue to apply in all circumstances. “
98 UN Human Rights Committee, ‘General Comment No. 29: Article 4: Derogations during a State of Emergency’, CCPR/C/21/Rev.1/
Add.11, 2001, at para. 11.
99 Fair Trials, Remote Criminal Justice Proceedings.
100 IASC, page 5.
101 Fair Trials, Remote Criminal Justice Proceedings.
102 Ibid., page 5.
103 For more detailed information about particular issues to monitor regarding the right to a fair trial during the coronavirus pandemic,
monitors are encouraged to consult the recent publication by Fair Trials International (see footnote above).
25
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