A/HRC/45/16
that the legal representation provided promotes effective representation, 24 including the
ability to communicate with legal counsel. 25
53.
Legal assistance should be available at all stages of criminal proceedings, namely,
during pretrial, trial, re-trial and appellate stages, to ensure compliance with fair trial
guarantees.26 For example, the presence of legal counsel during interrogations is an essential
safeguard in ensuring that any admissions by an individual are given freely. The Working
Group considers that confessions made in the absence of legal counsel are not admissible as
evidence in criminal proceedings. 27 Legal assistance should be provided free of charge if the
detained person cannot afford such, through an effective legal aid system, including paralegal
services. 28 Adequate time and facilities, preserving the client-lawyer privilege, should be
ensured.29
54.
The Working Group is concerned at the various forms of retaliatory measures
reportedly taken against lawyers solely for providing professional legal services to their
clients.30 It is the legal and positive duty of the State to protect everyone on its territory or
under its jurisdiction against any human rights violation and to provide remedy whenever a
violation still occurs.31 The Working Group recalls that the United Nations Basic Principles
and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of their
Liberty to Bring Proceedings Before a Court state, in principle 9, that legal counsel are to be
able to carry out their functions effectively and independently, free from fear of reprisal,
interference, intimidation, hindrance or harassment. 32
55.
The Working Group is mindful of the key role that lawyers have in preventing
instances of arbitrary deprivation of liberty and therefore wishes to underline the importance
of preserving the independence and impartiality of the profession. In particular, professional
bodies that represent the legal profession in each country, such as bar associations and law
societies, should never be part of a government ministry or other executive body. In addition,
there should be no government interference with the process of registering lawyers, or in
initiating disciplinary proceedings that bar associations and law societies undertake as part
of their own regulation or that come before independent courts.33 States should also give due
consideration to the development of the legal profession through university and other
professional legal education courses. 34
C.
Modern technologies and alternatives to detention
56.
Recalling that liberty of person, as enshrined in article 3 of the Universal Declaration
of Human Rights and article 9 of the International Covenant on Civil and Political Rights, as
well as in regional human rights instruments,35 is the principle to which deprivation of liberty
constitutes an exception, the Working Group has advocated for States to resort to measures
that are alternatives to deprivation of liberty in all detention settings, including criminal
justice and administrative detention. In some contexts, such as migration and pretrial
24
25
26
27
28
29
30
31
32
33
34
35
26
Ibid., para. 55. See also Human Rights Committee, Borisenko v. Hungary, communication No.
852/1999, para. 7.5.
See A/HRC/45/16/Add.2, para. 59.
A/HRC/42/39/Add.1, para. 54. See also the United Nations Basic Principles and Guidelines on
Remedies and Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings
Before a Court, principle 9.
See opinions No. 59/2019, No. 14/2019, No. 1/2014 and No. 40/2012. See also E/CN.4/2003/68, para.
26 (e).
A/HRC/42/39/Add.1, paras. 56–57.
See opinions No. 53/2019, No. 83/2018 and No. 76/2018.
See opinions No. 66/2019, No. 70/2017, No. 36/2017, No. 34/2017, No. 32/2017 and No. 29/2017.
See deliberation No. 10 (annex I of the present report).
See also the Basic Principles on the Role of Lawyers, paras. 16–22.
A/HRC/45/16/Add.2, para. 56.
Basic Principles on the Role of Lawyers, paras. 9–11. See also A/HRC/42/39/Add.1, para. 53.
African Charter on Human and Peoples’ Rights, art. 6, American Convention on Human Rights, art.
7, and European Convention on Human Rights, art. 5.
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