A/HRC/34/54/Add.1 1. Access to legal counsel 75. A fundamental safeguard against torture and ill-treatment is the right of access to counsel at all stages of the investigation process, in particular from the moment of apprehension. That right is enshrined in article 4 of the 2015 anti-torture law. Article 58 of the Code of Criminal Procedure, however, provides for access to a lawyer only after the first extension of the initial time in police custody,12 i.e. after 48 hours for those charged with common crimes13 and 72 hours for those charged with drug-related offences.14 Access to a lawyer is granted only upon written authorization by the relevant prosecutor, for no longer than 30 minutes and under the surveillance of the judicial police. If necessary for the investigation, the prosecutor may withhold access to counsel. 15 76. In cases involving charges of terrorism or crimes against the State, article 58 denies access to counsel during police custody entirely. That contradicts article 46 of the 2010 anti-terrorism law, revised in 2015, which states that no provision of the law should be interpreted with a view to limiting or reducing constitutionally guaranteed individual rights, including the right to a defence. 77. Unfortunately, the anti-torture law is silent on the matter. According to the principles of lex posterior derogat legi priori and lex specialis derogat legi generali, however, that law supersedes the relevant provisions in both the Code of Criminal Procedure and the anti-terrorism act, as it is the newer and more specific law. 78. The Special Rapporteur is greatly concerned that, at the time of his visit, despite the new law having been in force for several months, prosecutors, members of the judiciary and law enforcement personnel seemed to continue to apply the older provisions, either because they were unaware of the new law or because of misconceptions regarding its application. Even more disturbing is the position of the Ministry of Justice, conveyed to representatives of the Office of the United Nations High Commissioner for Human Rights in Mauritania, that the anti-torture law would not apply to individuals facing terrorism charges. 79. The Special Rapporteur strongly believes that suspects should have the right to access a lawyer from the moment of apprehension. He calls upon Mauritania to make the provisions of the anti-torture law known to its prosecutors, magistrates and judicial police, to amend its Code of Criminal Procedure accordingly and to clarify that its provisions supersede older, more general laws (including the 2015 anti-terrorism law). Mauritania now needs to make sure that that law is known and applied in all cases. 80. Furthermore, Mauritania lacks a proper public defender institution or legal aid programme for accused indigents. Order No. 2006.05 of 26 January 2006 has not resulted in a full-fledged legal aid or public defenders programme. In an effort to improve access to justice for the indigent, Law No. 2015-030 of 10 September 2015 was adopted to offer legal aid to indigent Mauritanians seeking representation before a court in civil matters (art.1). In criminal matters, access to legal assistance is limited to the “civil party”, thus excluding the defendant in criminal cases regardless of his or her status. Moreover, indigent foreigners can only benefit from legal assistance if a judicial agreement exists with their country of origin. While Law No. 2015-030 has yet to be implemented, it is unfortunately unlikely to address the concerns of the most vulnerable and marginalized detainees, as they are effectively excluded from the scope of the law. 12 13 14 15 14 Working days, not weekends or holidays. Code of Criminal Procedure, art. 57. Law No. 93-37 of 20 July 1993 on the suppression of the production of, trafficking in and illicit use of drugs and psychotropic substances, art. 24. Code of Criminal Procedure, art. 58.