OTHMAN (ABU QATADA) v. THE UNITED KINGDOM JUDGMENT
51
to be entitled “[t]o have adequate time and facilities for the preparation of
his defence and to communicate with counsel of his own choosing”. The
Human Rights Committee, in its General Comment 20 (1992) on Article 14,
has stated that the protection of the detainee requires that prompt and
regular access be given to lawyers. Failure to provide access to a lawyer for
five days was found to violate Article 14 in Gridin v. Russia,
Communication No. 770/1997.
In addition to its General Comment No. 2 (cited in Salduz at paragraph
43) the Committee Against Torture has stressed the right of arrested persons
to notify someone of their detention, to have prompt access to a lawyer and
to be examined by an independent doctor as fundamental safeguards against
torture, particular in the first hours and days of detention when the risk of
torture is greatest (see conclusions and recommendations in respect of
Albania of 21 June 2005 at paragraph 8(i) and France of 3 April 2006 at
paragraph 16).
The Special Rapporteur on Torture has said access to a lawyer should be
provided within 24 hours (Report of 3 July 2001, A/56/156 at
paragraph 39 (f)).
C. Military Courts
157. The applicant has provided the following international law
materials, which have been produced since Ergin v. Turkey (no. 6), cited
above.
158. In General Comment No. 32 of August 2007 on Article 14 of the
ICCPR (the right to a fair trial), the Human Rights Committee stated :
“While the Covenant does not prohibit the trial of civilians in military or special
courts, it requires that such trials are in full conformity with the requirements of
article 14 and that its guarantees cannot be limited or modified because of the military
or special character of the court concerned. The Committee also notes that the trial of
civilians in military or special courts may raise serious problems as far as the
equitable, impartial and independent administration of justice is concerned. Therefore,
it is important to take all necessary measures to ensure that such trials take place
under conditions which genuinely afford the full guarantees stipulated in article 14.
Trials of civilians by military or special courts should be exceptional, i.e. limited to
cases where the State party can show that resorting to such trials is necessary and
justified by objective and serious reasons, and where with regard to the specific class
of individuals and offences at issue the regular civilian courts are unable to undertake
the trials. (footnotes omitted).”
159. In Madani v. Algeria, Communication No. 1172/2003, 21 June
2007, the Committee concluded that the trial and conviction of the
complainant by a military tribunal was in violation of Article 14. This was
not avoided by the fact that the military judges had an independent career
structure, were subject to supervision by the Supreme Judicial Council or
that the court’s judgments were subject to appeal to the Supreme Court. The
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