CAT/C/48/3
(e)
A historical approach to human rights, linking these with the various actors
involved; and;
(f)
Articulated efforts between educational institutions, civil society
organizations, State agencies and international mechanisms for the promotion of human
rights.
B.
The correlation between legal aid, a system of public defence and
prevention of torture
77.
The right of access to a lawyer from the outset of detention is an important safeguard
to prevent torture and other cruel, inhuman and degrading treatment or punishment. This
right goes beyond the provision of legal aid solely for the purpose of building up a technical
defence. Indeed, the presence of a lawyer at the police station may not only deter the police
from inflicting torture or other cruel, inhuman and degrading treatment or punishment, but
is also key to assisting in the exercise of rights, including access to complaints mechanisms,
for those deprived of their liberty.
78.
Effective protection of the right to counsel requires the existence of a legal
assistance model, whatever this model might be, to ensure the performance of defence
counsels in an independent, free and technically qualified manner. For the realization of the
right to counsel there should be a legal framework which allows for public or ex officio
defence – whether provided by public officials or by lawyers working pro bono – with
functional independence and budgetary autonomy to guarantee free legal assistance for all
detainees who require it from the time of their arrest in a timely, effective and
comprehensive manner. In addition, the existence of an organizational framework which
ensures effective equality of arms between the public defender (be it State, pro bono or
mixed) , the Public Prosecutor and the police force is essential.
79.
Budget and staff constraints directly affect the public defence system as they
generate an excessive workload that is not compatible with the effective defence of the
interests of persons deprived of their liberty. This was observed repeatedly in the countries
visited by the Subcommittee, through numerous interviews both with detainees and
officials from various State organizations and civil society, and through information
collected and verified during these visits.
80.
Defence lawyers should visit their clients in detention periodically to obtain
information concerning the status of their cases and to conduct confidential interviews to
determine both their detention conditions and their treatment. They must play an active role
in the protection of the rights of detainees. The lawyer is a key player – along with judges
and prosecutors – in the execution of writs of habeas corpus.
81.
Many victims of torture and other cruel, inhuman and degrading treatment or
punishment are unwilling to report ill-treatment suffered for fear of reprisals. This can put
lawyers in a difficult situation as they cannot commence legal action without the consent of
their clients. In this regard, a centralized national database of allegations and incidents of
torture and ill-treatment, including anonymous, confidential information obtained under
professional confidentiality, is recommended.11 Such a register would be a source of useful
information that could point to situations where urgent action is required, and could also
assist in the development and adoption of preventive measures. The NPM and other such
bodies vested with authority to deal with prevention of and complaints concerning torture
11
18
See also General Assembly resolution 66/150, para. 8, which encourages States to consider records.
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