A/HRC/4/33/Add.2
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access to a lawyer at all stages of the investigation and trial. Therefore, impeding this right
entails the criminal liability of any person, including a law enforcement official, who acts as
such. Furthermore, the law enforcement officials at the police and gendarmerie headquarters who
are entrusted with investigatory functions in order to assist the public prosecutors in conducting
judicial investigations, are under direct authority, oversight and supervision of the public
prosecutors. Law enforcement officials are under obligation to immediately report any incident
of detention to the public prosecutors and conduct all the proceedings in accordance with the
instructions of the public prosecutors at all stages of the investigation. In this light, the allegation
in the NGO submission that “in practice access to lawyers is impeded by security forces to the
maximum extent” is manifestly unsubstantiated, given the effective safeguards for defence rights
provided by the Criminal Procedure Code. Therefore, such an allegation is unacceptable.
However, if any specific allegation of such a violation is reported to the competent authorities, it
will be investigated thoroughly.
613.
As regards the recent amendment introduced to the Anti-Terror Law, which allows for
suspension of a terrorist suspect’s right to access to defence counsel by 24 hours, this is an
exceptional precautionary measure, which can only be taken under extraordinary circumstances
and subject to judicial scrutiny. Such a measure can only be permitted by the decision of the
judge upon the request of the Public Prosecutor. During the restriction period, however, taking
statement from the suspect is prohibited. The purpose of this provision is to prevent a detainee
from assisting other perpetrators of a terrorist crime as well as to ensure that the evidence of the
crime is not destroyed by the terrorist organization.
614.
Counter-terrorist investigations require different methods than those of ordinary crimes
due to the necessity to respond to the complex nature of terrorist tactics in a commensurate way.
In general, the first 24 hours following the apprehension of a terror suspect are very important
for the investigation. Any evidence or information obtained on the suspect contributes
significantly to the investigation and assists in finding other perpetrators, preventing other
terrorist offences as well as seizing materials that will be used in other crimes. Furthermore,
various terrorist organizations have developed a so-called “alarm system” which triggers an alert
process aimed at eliminating the evidence, organizational information and documentation, when
a member is apprehended. In this respect, the restriction provided by the new amendment to the
Anti-Terror Law is a precautionary measure against terrorist tactics deemed necessary under
certain circumstances and on the basis of concrete evidence that needs to be found justifiable by
a judge. Judicial scrutiny is a safeguard against arbitrary practices. Another safeguard provided
in the provision is the ban on taking a statement from the suspect during the restricted period.
Only statements made in the presence of a lawyer are valid, as is the case with other suspects. A
medical examination of the suspect is conducted after the apprehension, before detention and at
the end of the detention period. If the suspect does not have the necessary financial means to
afford a lawyer, the cost is borne by the State. Therefore, this restriction does not prevent a
suspect from exercising his/her rights to defend him/herself or benefiting from the safeguards
provided for suspects.
615.
Recommendation (b) stated: The legislation should be amended to ensure that any
extensions of police custody are ordered by a judge, before whom the detainee should be
brought in person; such extensions should not exceed a total of four days from the moment
of arrest or, in a genuine emergency, seven days, provided that the safeguards referred to
in the previous recommendation are in place.
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