E/CN.4/1992/17
page 104
provision of the covering resolution has no specific addressee; it is
noteworthy in particular that it is not addressed to States or Governments but
in general to all those who have a function in ensuring that these principles
should be respected, including the judiciary and professional organizations,
such as medical associations.
284. The protection of the detainee's right to physical and mental integrity
in cases where torture has allegedly taken place is not the only important
task of the judiciary. Its role may be even more important in the prevention
of torture. In this respect special attention must be given to the detainee's
right to legal counsel. Torture most often takes place during incommunicado
detention, when the detainee is refused access to legal counsel. In this
respect Principle 18, paragraph 3, of the Body of Principles may be
highlighted. It states that the right of a detained or imprisoned person to
be visited by and to consult and communicate, without delay or censorship and
in full confidentiality, with his legal counsel, may not be suspended or
restricted save in exceptional circumstances, to be specified by law or lawful
regulations, when it is considered indispensable by a judicial or other
authority in order to maintain security and good order.
285. In many countries national legislation has not yet been brought fully
into conformity with these high international standards. It seems, however,
to be good legal reasoning that whenever a judge is asked to apply the law he
must do so by interpreting the national legal rules in such a way that they
conform as much as possible with the international standards. In doing so the
national judiciary can play a constructive role in the promotion of respect
for human rights. This promotion of respect for human rights is an obligation
of all States under the Charter, and the judiciary, as an organ of the State,
consequently has its own responsibility in that respect.
286. It is a matter of great concern that lawyers who have taken up the case
of persons whose human rights have been violated are themselves sometimes
subjected to harassment or even become the victims of serious human rights
violations. During the period under review, nine cases were brought to the
Special Rapporteur's attention in which lawyers were deprived of their liberty
and allegedly subjected to torture. It is a cynical world indeed where
persons who do nothing but honour their profession by helping people to have
their rights respected, themselves become victims of violations of these
rights.
287. In all his previous reports the Special Rapporteur has stressed the
importance of preventive measures. As one of the most significant of such
measures he mentioned the establishment of a system of periodic visits to
places of detention by independent experts. Within the context of the Council
of Europe a convention has been concluded to set up such a system of periodic
visits. The European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment, established under the convention, has
visited a number of States parties, and although it carries out its mandate in
strict confidentiality, two States parties (Austria and Denmark) decided to
make public the Committee's report on the visit paid to their country. The
idea of establishing a treaty-based worldwide system of periodic visits, as
contained in the Costa Rican proposal made in 1980 and as amended last year
(E/CN.4/1991/66), is still on the Commission's agenda. The Special Rapporteur
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