Yes, lawyers can prevent torture!
Author: Samahanta Paredón
There is an assumption that a lawyer’s daily work is defending cases in the criminal, civil, labour and other fields. That is true, but is it possible for lawyers to also work in prevention? Specifically, the prevention of torture and ill-treatment?
According to the research Does torture prevention work?, which analyses more than 60 measures to prevent torture at the global level and their effects on the incidence of torture, one of the measures that has the greatest impact is early access to a lawyer during detention.
“Each victim of torture is one victim too many. At a time when state leaders are challenging the absolute prohibition of torture, one of the best ways to combat torture and to achieve a torture free world is to work together to ensure its prevention everywhere”
Nils Melzer, UN Special Rapporteur on Torture, Juan Méndez, Manfred Nowak and Theo van Boven, former UN Special Rapporteurs on Torture – 26 June 2017.
This is not a trivial statement. In Mexico, a close relationship can be observed between the percentage of people who did not have access to a lawyer during detention and the percentage of assaults during these hours of custody. According to data from the National Survey of Population Deprived of Liberty (ENPOL, 2016), 75.6% of the people deprived of liberty who were interviewed said that during the arrest they suffered psychological violence, while 68.3% were physically assaulted. Forty-nine percent were held incommunicado or in isolation and 40.8% were threatened with false charges while being held in the Public Prosecutor's Office. Of these, only 19.8% managed to contact their lawyer while they were at the Public Prosecutor's Office. There are no figures regarding access to a lawyer during police detention.
As stated by several international organisations, such as the UN Subcommittee on Prevention of Torture and the former UN Special Rapporteur on Torture, these early moments of custody represent the greatest risk of suffering torture and ill-treatment. They recommended the effective implementation of safeguards during the first moments of custody, including access to a lawyer.
In the last decade, Mexico underwent a series of reforms aimed at incorporating international standards and broadening the framework of guarantees to protect detainees. While it is important that the right of access to a lawyer is incorporated into the legislation, this is not a guarantee it occurs in practice, and there is currently a huge gap between the law and practice.
The recent APT’s Situation analysis on access to a lawyer during the first hours of custody in Mexico reveals that access to a lawyer is not guaranteed during the first hours of police detention, but only when the person is handed over to the Public Prosecutor’s Office. During this period of detention by the Police - which can last between 15 minutes to 11 hours – persons are incommunicado. When the person is handed over to the Public Prosecutor's Office, access to a lawyer is not always immediate, either due to late notification by the authorities or, in the case of Public Defenders, due to work overload. In addition, there are no guarantees of privacy and therefore confidentiality.
Clearly, guaranteeing this right is a shared responsibility of law enforcement agents, public prosecutors, public defenders and private lawyers and requires a combination of measures to be effective. This right can only be implemented if all the actors involved play their respective roles.
Many resources have been invested in the investigation and punishment of crimes of torture and, although this is an encouraging scenario, it is also important to invest in safeguards to prevent them. International experience has found practical solutions to overcome implementation challenges - even without the need for additional resources.
The intervention of a lawyer during the first moments of custody would immediately draw attention to the state of the person and the circumstances of the detention. It would also allow the monitoring of his/her transfer, and avoid incommunicado detention and intimidation. Above all, it would replace the culture of secrecy - which often prevails in detention - by a culture of transparency.
This leads us, without a doubt, to rethink and reflect on a new perspective regarding the important role of lawyers that goes beyond criminal defense.
Perhaps, in the future, less cases of torture will have to be litigated if they are prevented from happening in the first moments of custody.
Samahanta Paredón Bautista, Legal Consultant for APT’s project on access to a lawyer during the first hours of custody in Mexico, funded by the Ford Foundation.