Access to a lawyer as a safeguard against ill-treatment
A number of international and regional standards provide that persons deprived of their liberty should have prompt and regular access to a lawyer. This is a key safeguard of rights in detention. As the United Nations Subcommittee on Prevention of Torture (SPT) notes, access to legal representation throughout the whole imprisonment period is essential both to protect “the inherent rights of detainees relating to detention regime and conditions, (which include such matters as access to adequate food and lodging, visits and access to services) and exposing detainees to further information about their detention and means of enforcing their rights” (Discussion on the Standard Minimum Rules for the Treatment of Prisoners, 2013). All detainees, whether sentenced or in pre-trial custody, should thus have access to legal representation.
Right to a lawyer for persons in pre-trial detention
Given the vulnerability of persons in the early stages of detention, in the prison context the right to access a lawyer is particularly important for pre-trial detainees and is broader than assisting the detained person to prepare their defense. Lawyers are often a detainee’s only contact with the outside world. They can see the physical condition of the detainee and advise them on exercising their rights, including challenging the detention if it is arbitrary. Ensuring access to a lawyer is therefore important for transparency, protecting rights, reducing the risk of arbitrary detention and as a deterrent for abuse in these early stages.
“Prompt” access to a lawyer
Detainees should be given the opportunity to contact and meet with a lawyer as soon as possible after deprivation of liberty. A number of expert bodies have recommended this should be ensured “from the outset” or “actual moment” of deprivation of liberty. The UN Special Rapporteur on Torture has recommended a time limit of 24 hours. In any case it should be granted within no more than 48 hours after deprivation of liberty.
Information on access to a lawyer
Prison admission procedures should ensure that detainees are informed about their right to access a lawyer, in a language they understand, upon arriving at the prison. If the detainee does not have a lawyer, they should be given the opportunity to contact one free of charge and/or informed of how they can have one appointed to them. Detainees who already have legal counsel should be informed of how they can contact, meet and communicate with their lawyer.
Choice of lawyer
Detainees should be entitled to contact and appoint a lawyer of their choice. If the detainee does not know a lawyer, the prison authorities should arrange for one to be appointed by a judicial or other competent authority (it is not enough for the authorities to merely allow lawyers to access the prison). Ideally such a lawyer should be selected from a roster maintained by the local bar association (or equivalent). The lawyer must be of “experience and competence commensurate with the nature of the offence assigned to them in order to provide effective legal assistance” (BP 6). Some jurisdictions recognise the right of detainees who have been assigned a lawyer to apply for a change of lawyer (for reasons such as incompetence or bias).
If a detainee does not have the sufficient means to pay for a lawyer, they should be provided with one free of charge. This requires a functioning legal aid or public defender system, where effective legal representation is provided by a state agency with functional independence, budgetary autonomy and sufficient human and material resources. In practice, in many countries legal aid systems either do not exist or they do not function properly. Lawyers may not be sufficiently independent from the authorities and/or not actively seek to represent the interests of their client (for example, not seeking to meeting with the client in preparation before a hearing).There may also be an insufficient number of lawyers with the necessary experience or competence. In such cases, the authorities may need to make provisional arrangements, for example, relying on paralegals to provide legal assistance, while the legal aid system is being developed. Governments may also use contractual lawyers, to provide legal representation on an affixed fee basis.
Meetings with lawyers
Prison authorities should provide adequate opportunities and facilities for detainees to meet with a lawyer, without delays or unjustified time limits. The facilities should allow detainees to meet with their lawyers out of hearing of prison staff, although the visits may be in sight of staff (for example, staff may observe through a glass panel). Detainees should be able to hand to their lawyer confidential instructions – this means that they should be provided with writing material. Detainees should also be allowed to have access to or keep with them materials related to their legal proceedings.
Confidential communication with a lawyer
Detainees should be able to communicate freely with their lawyer, without delay, interception or censorship. Communications between detainees and lawyers must be confidential i.e. letters between them should not be opened; telephone calls should not be monitored.
Restrictions on right to access a lawyer
The right to confidentially consult, communicate and meet with a lawyer may not be suspended or restricted save in “exceptional circumstances”. These circumstances must be specified in law or lawful regulations (for example, some domestic regimes allow restrictions on access to a lawyer where an ongoing investigation may be jeopardised or where public safety is at risk). Restrictions must be approved as indispensable for the justified purpose in the individual case, preferably by judicial authorities (or other competent authorities). In any case, confidential communication shall not be denied for more than a matter of days.
In some jurisdictions, if the authorities have a legitimate reason to suspect that confidential mail between a detainee and their lawyer are being used to send illegal or dangerous items, they may open correspondence in the presence of the detainee to check the contents. However, the authorities should under no circumstances read the correspondence.
Any restriction on the right to access to a lawyer must not circumvent the protection of non-derogable rights, even in exceptional circumstances. So, safeguards including the right to access to a lawyer cannot be restricted to such an extent that torture or other ill-treatment (a non-derogable right) would be facilitated. The UN Special Rapporteur on Torture (2003) has recommended that where restrictions on accessing a lawyer are judicially approved because of genuine security concerns, the detained person should be allowed to meet with an independent lawyer, for example one recommended by the local bar association.
Access to a lawyer in the execution of sentence
Detainees serving a sentence should be able to access a lawyer to ensure due process and the protection of their rights in the execution of their sentence. Lawyers can assist detainees serving a sentence to understand their rights and challenge aspects of their conditions and treatment in detention, including through complaints mechanisms and proceedings before judicial and other authorities. Legal representation can be particularly important for detainees in serious disciplinary proceedings. As the United Nations Subcommittee on Prevention of Torture (SPT) has noted, proceedings arising from situations in prisons can require specialised legal expertise different from skills required for criminal defense.
Right of persons in situations of vulnerability to access a lawyer
Persons in situations of vulnerability have the same right to access a lawyer as other detainees in prison. It is particularly important that such persons have effective legal assistance, as they may face a heightened risk that their rights are not respected. At the same time, they may face barriers accessing a lawyer in practice. Prison authorities should therefore pay attention and take specific measures where necessary to ensure that such persons are able to access this right effectively.
Children can be particularly vulnerable in detention and often have less understanding of their rights and legal procedures than adults. Prison authorities should ensure that children and their guardians have their right to access a lawyer clearly explained to them. The best interests of the child can be best guaranteed if lawyers have expertise in communicating with and representing children, including those in detention, and knowledge of other support services available to them. Children should have access to legal aid that is age-appropriate, multi-disciplinary and responsive to their specific legal and social needs.
Prison authorities should ensure that persons with mental or physical disabilities have the same access to a lawyer as other detainees. There should be no architectural barriers hindering the ability of detainees with disabilities to meet with their lawyer. Prison authorities may need to provide auxiliary devices to facilitate effective communication between detainees and their lawyer (for persons with hearing, visual or speech impairment). Persons with learning or mental disabilities may need extra assistance in understanding their right to access a lawyer and arranging legal representation.
Foreign nationals, persons belonging to minorities and indigenous groups may face challenges exercising their rights in detention due to language barriers and a lack of knowledge of legal and administrative procedures. It is thus important that they have access to a lawyer, but they may face barriers in exercising this right. Prison authorities should clearly explain this right to them in a language they understand. Bar associations and legal aid providers should seek to ensure the availability of lawyers who speak minority languages in the country. Where a person cannot speak the language of a lawyer appointed to them, interpretation services should be made available. Foreign nationals should be informed of their right to consular assistance – this may be able to assist in arranging legal representation.
Legal standards (17) Print
International Convenant on civil and political rights
3. In the determination of any criminal charge against him, everyone shall be
entitled to the following minimum guarantees, in full equality : [...]
b) To have adequate time and facilities for the preparation of his defence and to
communicate with counsel of his own choosing. [...]
United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules)
Prisoners shall be allowed to defend themselves in person, or through legal assistance when the interests of justice so require, particularly in cases involving serious disciplinary charges.
If the prisoners do not understand or speak the language used at a disciplinary hearing, they shall be assisted by a competent interpreter free of charge.
In the event that a breach of discipline is prosecuted as a crime, prisoners shall be entitled to all due process guarantees applicable to criminal proceedings, including unimpeded access to a legal adviser.
Upon admission, every prisoner shall be promptly provided with written information about:
(b) His or her rights, including authorized methods of seeking information, access to legal advice, including through legal aid schemes, and procedures for making requests or complaints [...]
Prisoners shall be provided with adequate opportunity, time and facilities to be visited by and to communicate and consult with a legal adviser of their own choice or a legal aid provider, without delay, interception or censorship and in full confidentiality, on any legal matter, in conformity with applicable domestic law. Consultations may be within sight, but not within hearing, of prison staff.
In cases in which prisoners do not speak the local language, the prison administration shall facilitate access to the services of an independent competent interpreter.
Prisoners should have access to effective legal aid.
If an untried prisoner does not have a legal adviser of his or her own choice, he or she shall be entitled to have a legal adviser assigned to him or her by a judicial or other authority in all cases where the interests of justice so require and without payment by the untried prisoner if he or she does not have sufficient means to pay. Denial of access to a legal adviser shall be subject to independent review without delay.
1.The entitlements and modalities governing the access of an untried prisoner to his or her legal adviser or legal aid provider for the purpose of his or her defence shall be governed by the same principles as outlined in rule 61.
2. An untried prisoner shall, upon request, be provided with writing material for the preparation of documents related to his or her defence, including confidential instructions for his or her legal adviser or legal aid provider.
Body of principles for the protection of all persons under any form of détention or imprisonment
1. A detained person shall be entitled to have the assistance of a légal counsel. He shall be informed of his right by the competent authority promptly after arrest and shall be provided with reasonable facilities for exercising it.
2. If a detained person does not have a legal counsel of his own choice, he shall be entitled to have a legal counsel assigned to him by a judicial or other authority in all cases where the interests of justice so require and without payment by him if he does not have sufficient means to pay.
1. A detained or imprisoned person shall be entitled to communicate and consult with his legal counsel.
2. A detained or imprisoned person shall be allowed adequate time and facilities for consultations with his legal counsel.
3. 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.
4. Interviews between a detained or imprisoned person and his legal counsel may be within sight, but not within the hearing, of a law enforcement official.
5. Communications between a detained or imprisoned person and his légal counsel mentioned in the present principle shall be inadmissible as évidence against the detained or imprisoned person unless they are connected with a continuing or contemplated crime.
United Nations Rules for the Treatment of Women Prisoners and Non - custodial Measures for Women Offenders (the Bangkok Rules)
1. Adequate attention shall be paid to the admission procedures for women and children, due to their particular vulnerability at this time. Newly arrived women prisoners shall be provided with facilities to contact their relatives; access to legal advice; information about prison rules and regulations, the prison regime and where to seek help when in need in a language that they understand; and, in the case of foreign nationals, access to consular representatives as well.
Convention on the Rights of the Child
States Parties shall ensure that : […]
(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.
United Nations rules for the protection of juveniles deprived of their liberty
(a) Juveniles should have the right of legal counsel and be enabled to apply for free legal aid, where such aid is available, and to communicate regularly with their legal advisers. Privacy and confidentiality shall be ensured for such communications.
General comment n° 10 of the Commitee on the Rights of the Child
The child must be guaranteed legal or other appropriate assistance in the preparation and presentation of his/her defence. CRC does require that the child be provided with assistance, which is not necessarily under all circumstances legal but it must be appropriate. It is left to the discretion of States parties to determine how this assistance is provided but it should be free of charge. […]
[…] The legal or other appropriate assistance must be present. This presence should not be limited to the trial before the court or other judicial body, but also applies to all other stages of the process, beginning with the interviewing (interrogation) of the child by the police.
United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("The Beijing Rules")
1. Throughout the proceedings the juvenile shall have the right to be represented by a legal adviser or to apply for free legal aid where there is provision for such aid in the country.
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families
7. Migrant workers and members of their families who are subjected to any form of detention or imprisonment in accordance with the law in force in the State of employment or in the State of transit shall enjoy the same rights as nationals of those States who are in the same situation.
United Nations Special Rapporteur on minority issues, Report to the General Assembly, 30 July 2015, A/70/212
Marginalization of minority groups means that they are more likely to rely on free legal aid. Failure by a State to ensure a system adequate in scope and resources particularly impacts minorities. Further, minorities are often unaware of the availability of legal aid or of how to access it, despite the obligation to provide such information. Minorities may not receive equal access to or quality of legal aid, notwithstanding that international standards include an obligation of non discrimination and recognize that special measures should be taken to ensure meaningful access for minorities.
Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, A/HRC/31/57, 5 January 2016
With regard to women, girls, and lesbian, gay, bisexual and transgender persons in detention, the Special Rapporteur calls on all States to:
[...] (c) Guarantee the right to effective assistance of counsel, including by means of a legal aid system, and the right to appeal decisions to a judicial or other competent independent authority, without discrimination; [...]
UN Basic Principles on the Role of Lawyers
6 (Special safeguards in criminal justice matters )
Any such persons who do not have a lawyer shall, in all cases in which the interests of justice so require, be entitled to have a lawyer of experience and competence commensurate with the nature of the offence assigned to them in order to provide effective legal assistance, without payment by them if they lack sufficient means to pay for such services.
United Nations Basic Principles and Guidelines on the right of anyone deprived of their liberty to bring proceedings before a court, WGAD/CRP.1/2015, 4 May 2015
Principle 9. Assistance by legal counsel and access to legal aid
30. Any persons deprived of their liberty shall have the right to legal assistance by counsel of their choice, at any time during their detention, including immediately after the moment of apprehension. Upon apprehension, all persons shall be promptly informed of this right.
31. Assistance by legal counsel in the proceedings shall be at no cost for a detained person, without adequate means, or for the individual bringing proceedings before a court on the detainee’s behalf. In such cases, effective legal aid shall be provided promptly at all stages of the deprivation of liberty; this includes, but is not limited to, the detainee’s unhindered access to legal counsel provided by the legal aid regime.
32. Persons deprived of their liberty shall be accorded adequate time and facilities to prepare their case, including through disclosure of information in accordance with the present Basic Principles and Guidelines, and to freely communicate with legal counsel of their choice.
33. Legal counsel shall be able to carry out their functions effectively and independently, free from fear of reprisals, interference, intimidation, hindrance or harassment.59 Authorities shall respect the privacy and confidentiality of legal counsel-detainee communications.
European prison rules
All prisoners are entitled to legal advice, and the prison authorities shall provide them with reasonable facilities for gaining access to such advice.
Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense.
Where there is a recognised scheme of free legal aid the authorities shall bring it to the attention of all prisoners.
Consultations and other communications including correspondence about legal matters between prisoners and their legal advisers shall be confidential.
A judicial authority may in exceptional circumstances authorise restrictions on such confidentiality to prevent serious crime or major breaches of prison safety and security.
Prisoners shall have access to, or be allowed to keep in their possession, documents relating to their legal proceedings.
Principles and Best Practices on the Protection of Persons Deprived of Liberty in the America
Principle V – Due process of law
[…] All persons deprived of liberty shall have the right to a defense and to legal counsel, named by themselves, their family, or provided by the State; they shall have the right to communicate privately with their counsel, without interference or censorship, without delays or unjustified time limits, from the time of their capture or arrest and necessarily before their first declaration before the competent authority.
Principle XVIII: Contact with the outside world
Persons deprived of liberty shall have the right to receive and dispatch correspondence, subject to such limitations as are consistent with international law; and to maintain direct and personal contact through regular visits with members of their family, legal representatives, especially their parents, sons and daughters, and their respective partners.
They shall have the right to be informed about the news of the outside world through means of communication, or any other form of contact with the outside, in accordance with the law.
Robben Island Guidelines
All persons who are deprived of their liberty by public order or authorities should have that detention controlled by properly and legally constructed regulations. Such regulations should provide a number of basic safeguards, all of which shall apply from the moment when they are first deprived of their liberty. These include : […]
The right of access to a lawyer […]
Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa
14. Safeguards for persons subject to pre-trial detention orders
c. Pre-trial detainees shall have regular and confidential access to lawyers or other legal service providers. Detainees must be provided with information about the availability of lawyers and, where appropriate, other legal service providers, the means to access them, and the facilities to prepare their defence.
g. Legal assistance
Children shall be guaranteed the right to the presence of lawyer, or other legal services provider, of their choice and, where required, access to free legal services, from the moment of arrest and at all subsequent stages of the criminal justice process. Legal assistance shall be accessible, age appropriate and responsive to the specific needs of the child.
c. Stateless persons
Stateless persons shall be informed of their right to contact a lawyer or other legal service provider who can address their needs, and relevant international organisations, and be provided with the means to contact them without delay. Detaining authorities must provide the detainee with facilities to meet with such persons. However, detaining authorities shall only contact relevant international organisations about the arrest and detention of a person who is stateless if the person so requests.
Questions for monitors (15) Print
Are detainees who arrive in prison informed of their right to access a lawyer and process for going about this?
Are detainees given the opportunity to contact a lawyer free of charge if they do not have one?
If detainees do not have or know a lawyer, are they appointed one by the authorities?
Are detainees who do not have the means to pay for a lawyer appointed one free of charge?
Where legal representation is provided/appointed by the authorities, is it of sufficient quality and independence? Did the lawyer visit the detainee in prison to meet with them?
Are there adequate facilities and opportunities for detainees to meet with their lawyer out of hearing of prison staff, without delays or unjustified time limits?
Are detainees able to communicate freely and confidentially with a lawyer?
Are there exceptions to the right to confidentially consult communicate and meet with a lawyer? Are these specified in laws or regulations with proper safeguards?
Are detainees able to access a lawyer that speaks their language? If not, are interpretation services available?
Do persons with disabilities have the same possibility of accessing a lawyer as other detainees?
Do children have effective access to a lawyer?
Do prison authorities ensure that the right to access a lawyer is clearly explained to children and their guardians?
Are lawyers representing children experienced in communicating with and advising children, including those in detention?
Is legal aid provided to children age-appropriate, multi-disciplinary (coordinated with other children’s services) and responsive to their specific legal and social needs?
Do convicted detainees have access to a lawyer if they request/need? Are there lawyers available with expertise in proceedings relating to situations in prisons?