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EuropeanConventionHandbookForPolice

Investigating crime; and

Investigating crime; and ensuring the integrity of the criminal process Page 83 regardless of their status in law. 240 Apart from having ‘a dissuasive effect upon those minded to ill-treat’, 241 these are both effective avenues for transmitting allegations or other information about torture or other forms of ill-treatment as well as important potential measures for collecting evidence of any illtreatment and having this transmitted to the relevant authorities. Indeed, as the Strasbourg Court itself has noted, ‘allegations of torture in police custody are extremely difficult for the victim to substantiate if he or she has been isolated from the outside world, without access to doctors, lawyers, family or friends who could provide support and assemble the necessary evidence ...’. 242 Since these rights would be of little value if individuals are unaware of their existence, there is a corollary right to be expressly informed of these rights ‘without delay and in a language which they understand’; and to ensure this notification is made, ‘a form setting out those rights in a straightforward manner should be systematically given to persons detained by the police at the very outset of their custody. Further, the persons concerned should be asked to sign a statement attesting that they have been informed of their rights.’ 243 However, the CPT has accepted that in exceptional cases it may be necessary to delay access to a lawyer of the suspect’s choice or notification of the fact of detention to a third party in order to protect the legitimate interests of the police investigation. But the CPT has at the same time stressed that such exceptions should be clearly defined and subject to strict limitations and accompanied by further appropriate guarantees (for example, any delay must be recorded in writing with the reasons for the delay, and this should only occur with the authorisation of a senior police officer unconnected with the case, or of a prosecutor or judge). Nevertheless, the safeguards should be applied without unduly impeding the police in the proper exercise of their duties: ‘a lawyer is well placed to take appropriate action if ill-treatment actually occurs. The CPT recognises that in order to protect the legitimate interests of the police investigation, it may exceptionally be necessary to delay for a certain period a detained person’s access to a lawyer of his choice. However, this should not result in the right of access to a lawyer being totally denied during the period in question. In such cases, access to another independent lawyer should be arranged.’ 244 ‘Of course, the CPT recognises that the exercise of this right might have to be made subject to certain exceptions, in order to protect the legitimate interests of 240 12th General Report on the CPT’s activities, CPT/Inf (2002) 15, paragraph 41. 241 6 th General Report on the CPT’s activities, CPT/Inf (96) 21, paragraph 15. 242 Mammadov (Jalaloglu) v Azerbaijan, judgment of 11 January 2007 at paragraph 74. 243 12 th General Report on the CPT’s activities, CPT/Inf (2002) 15, paragraph 44. 244 12 th General Report on the CPT’s activities, CPT/Inf (2002) 15, paragraph 41.

The European Convention on Human Rights and Policing Page 84 the police investigation. However, such exceptions should be clearly defined and strictly limited in time, and resort to them should be accompanied by appropriate safeguards (e.g. any delay in notification of custody to be recorded in writing with the reasons therefore, and to require the approval of a senior police officer unconnected with the case or a prosecutor).’ 245 For the CPT, access to a lawyer must include the right to a consultation in private, the presence of the legal representative at interrogations, and the availability of legal aid for persons who are not in a position to pay for the services. 246 Again, though, this must not interfere with the legitimate interests of police investigations: ‘this should not prevent the police from questioning a detained person on urgent matters, even in the absence of a lawyer (who may not be immediately available), nor rule out the replacement of a lawyer who impedes the proper conduct of an interrogation.’ 247 The CPT has also given notice that it expects that domestic provision should be made for a code of conduct for the interrogation of suspects in the form of rules or guidelines. This is necessary to help ensure that interrogators adhere to the ‘precise aim’ of interrogation and protect detainees against the risk of ill-treatment. Specific provisions should regulate the questioning of vulnerable individuals such as the young or mentally disabled and individuals under the influence of drugs or alcohol or who are in a state of shock. In particular, juveniles should never be required to sign any document without having a legal representative or trusted adult present. 248 The practice of blindfolding detainees in police custody should be expressly prohibited as a form of oppressive conduct which may frequently be considered as amounting to psychological ill-treatment even where no actual physical ill-treatment has occurred (it is clear to the committee that the practice is normally adopted to ensure that detainees are prevented from being able to identify law-enforcement officials who inflict actual ill-treatment, despite conflicting or even contradictory justifications from police officers to the contrary). 249 Relevant information surrounding the physical well-being of the detainee and both the advising and exercise of legal rights should be entered into the detainee’s custody record and 245 Ibid. paragraph 43. 246 Note the CPT’s view that this should be applicable to persons required to stay with the police regardless of their status. 12th General Report on the CPT’s activities, CPT/Inf (2002) 15, paragraph 41. 247 Ibid. 248 See for example CPT/Inf (2004) 16 (Turkey), paragraph 27. 249 12th General Report, CPT/Inf (2002) 15, paragraph 38.