18 A practical guide to the Istanbul Protocol – for lawyers In practice, the extent to which lawyers can become involved with national preventative mechanisms depends on the composition and mandate of the particular body. But as recommended by the UN Committee against Torture, both lawyers and doctors should form part of the independent body of ex24 perts visiting places of detention. In some countries lawyers and representatives from NGOs can participate in visits by such bodies. In other countries, where lawyers learn about abuses occurring in a detention facility only through communication with their client(s), this information can be submitted to the national preventative mechanism for their follow-up. Where national authorities fail to effectively fulfil their positive obligations to take measures to prevent torture, these deficiencies can be brought to the attention of appropriate international mechanisms. Some examples of such “international preventative mechanisms” are listed below. 2. CUSTODIAL SAFEGUARDS International human rights law recognises the vital importance of safeguards to protect persons who are taken into custody and are designed to minimise the risk of torture. These measures are commonly referred to as “custodial safeguards” and include the right of access to lawyers, physicians and family 25 members and, in the case of foreign nationals, diplomatic and consular representatives.26 a. International standards on the right of detainees to access a lawyer A detainee’s right to access a lawyer of his or her own choosing is firmly established under international law. This safeguard protects basic due process rights enshrined in international law and it is also an important protection against torture. As established in Principle 33 (1) of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment: “A detained or imprisoned person or his counsel shall have the right to make a request or complaint regarding his treatment, in particular in case of torture or other cruel, inhuman or degrading treatment, to the authorities responsible for the administration of the place of detention and to higher authorities and, when necessary, to appropriate authorities vested 27 with reviewing or remedial powers.” International law stipulates that any person deprived of their liberty, with or without having been charged of a criminal offence, should have prompt and unrestricted access to a lawyer. A detainee’s right to access a lawyer should be provided for in national law and any restrictions on this right should be exceptional and subject to judicial review.28 However, in some countries, domestic law only accords detainees the right to access a lawyer after a specific time period and not from the outset of their detention.29 The United Nations Special Rapporteur on Torture has stated that national legislation should provide that detainees are given access within 24 hours of detention.30 Detainees have a right to full and unrestricted access to a lawyer of their own choice. As recognised by the UN Basic Principles on the Role of Lawyers (Basic Principles on Lawyers),31 national authorities are obliged to ensure effective and equal access to lawyers for all persons within their territory. The Basic Principles on Lawyers also stipulate that governments should ensure that all persons are immediately informed of their right to a lawyer of their own choice upon detention and have prompt access to a lawyer. Furthermore, Principle 8 stipulates that governments should ensure that lawyers are able to perform their professional functions without improper interference and can consult with their clients freely without delay,