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confirmed by States’ practice, the following basic legal
safeguards should remain in fact in any legislation
relating to arrest and detention, including any type of
anti-terrorist legislation: the right to habeas corpus, the
right to have access to a lawyer within 24 hours from
the time of arrest and the right to inform a relative or
friend about the detention. These safeguards guarantee
the access of any person in detention to the outside
world and thus ensure his or her humane treatment
while in detention.
B. Places of pre-trial detention
19. The Special Rapporteur has been informed that
some laws would allow security and other forces
carrying out the investigation, in particular police, to
request the transfer of an accused person from judicial
custody to their custody for a period of time for the
purposes of further investigation. As stated by his
predecessor, the Special Rapporteur recommends that
those legally arrested should not be held in facilities
under the control of their interrogators or investigators
for more than the time required by law to obtain a
judicial warrant of pre-trial detention which, in any
case, should not exceed a period of 48 hours. They
should accordingly be transferred to a pre-trial facility
under a different authority at once, after which no
further unsupervised contact with the interrogators or
investigators should be permitted.19
20. The Special Rapporteur would also recommend
that at the time of arrest, a person should undergo a
medical inspection, and that medical inspections should
be repeated regularly and should be compulsory upon
transfer to another place of detention.20 The Standard
Minimum Rules for the Treatment of Prisoners also
recommend that the medical officer shall see and
examine every prisoner as soon as possible after his
admission and thereafter as necessary (rule 24).
C. Length of pre-trial detention
21. National judicial authorities must also ensure that
the detention of an accused person pending trial does
not exceed a reasonable time, taking into consideration
whether there exists a genuine requirement of public
interest justifying, with due regard to the principle of
presumption of innocence, a departure from the rule of
respect for individual liberty. The persistence of
reasonable suspicion that the person arrested has
8
committed an offence is a condition sine qua non for
the validity of the arrest in the first place and then of
the continuation of the detention. Special diligence
must prevail in any criminal proceedings. The Special
Rapporteur would like to recall that the exigencies of
dealing with terrorist criminal activities cannot justify
interpreting the notion of the “reasonableness” of the
suspicion on which an arrest and then a detention may
be based, to the point of impairing its very meaning.
According to the Human Rights Committee, pre-trial
detention should be an exception and as short as
possible. 21 Regular periodic review of the lawfulness
and continuing necessity of the detention should thus
be carried out by an independent and impartial court of
law with a view to re-examining the reasonableness of
the suspicion on which the detention is based.
D. Confessions and evidence
22. Fears have been expressed that confessions or
evidence extracted by illegal means during
interrogation would be admissible in court when
dealing with terrorist charges. The Special Rapporteur
would like to recall article 15 of the Convention
against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment which clearly states that “any
statement which is established to have been made as a
result of torture shall not be invoked as evidence in any
proceedings, except against a person accused of torture
as evidence that the statement was made”. Accordingly,
the previous Special Rapporteur has constantly
recommended that no statement of confession made by
a person deprived of liberty, other than one made in
presence of a judge or a lawyer, should have a
probative value in court, except as evidence against
those who are accused of having obtained the
confession by unlawful means. Serious consideration
should be given to introducing video- and audiotaping
of proceedings in interrogation rooms.22 He further
recommended that each interrogation should be
initiated with the identification of all persons present,
and that all interrogation sessions should be recorded
and preferably videorecorded. The identity of all
persons present should be included in the records, and
evidence from non-recorded interrogations should be
excluded from court proceedings. 23 It should be noted
that the Basic Principles on the Role of Lawyers
provide that all persons are entitled to call upon the
assistance of a lawyer of their choice to protect and
establish their rights and to defend them in all stages of
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