A/HRC/45/CRP.9 D. Right to have adequate time and facilities to prepare one’s defence and right to legal counsel 116. Individuals ‘prosecuted’ for conflict-related offences in territory controlled by both self-proclaimed ‘republics’ are unable to effectively defend themselves in ‘courts’ due to severe restrictions on the rights to defend oneself and to have assistance of counsel, as well as the practice of administrative detention described above. The right is also jeopardised by the lack of independence of lawyers’ associations. Defendants lack access to their lawyers and receive poor legal advice due to their lawyers’ cooperation with ‘prosecution’. OHCHR also notes the absence of a developed system of free legal aid and remuneration for legal aid lawyers. 117. The rights to prepare a defence and to legal counsel are affirmed in international human rights standards as indispensable guarantees of the right to a fair trial as well as in international humanitarian law in conflict related cases. Defendants in criminal cases must have adequate time and facilities to prepare their defence, which includes access to documents or evidence and ability to communicate with counsel of their own choosing. 118. OHCHR found that while in administrative detention, individuals are held incommunicado without the possibility of communicating with the outside world. They are not informed of the reasons for their detention, nor are provided access to information about criminal proceedings, which are conducted simultaneously, and are not provided access to defence lawyers, even during interrogation.151 OHCHR documented 167 cases where detainees were interrogated without access to a lawyer while being held in administrative detention. Detainees’ families receive no information about the arrest of, and investigation against, their loved ones and therefore cannot contract lawyers to defend them. This practice violates the right to prepare a defence because the accused do not enjoy timely and confidential access to counsel and are not provided with information about their ‘prosecution’. 119. OHCHR documented seven cases where the detainees were not provided access to their criminal files until the ‘court’ started considering the cases. 152 The individual’s lack of prior access to the criminal file amounts to a violation of their right to prepare a defence. 120. The ‘legislation’ of both self-proclaimed ‘republics’ foresees the right to legal assistance in criminal proceedings,153 which can be provided free of charge when the participation of a lawyer is mandatory.154 Defence lawyers are required to be certified in territory controlled by self-proclaimed ‘republics’, by making submissions to the ‘ministries of justice’, and in territory controlled by ‘Luhansk people’s republic’, defence lawyers are also screened and certified by the ‘ministry of state security’. 155 These procedures place lawyers at risk, as they may face criminal prosecution from the Ukrainian Government for 151 152 153 154 155 26 According to ‘legislation’ of self-proclaimed ‘republics’, the practice of administrative detention is not covered by the ‘criminal procedure framework’. Hence, individuals subjected to administrative detention are not entitled to the rights and guarantees provided in the criminal procedure legislation, including the right to legal counsel. However as noted above, OHCHR has observed that these administrative detentions often lead to criminal procedures during which information gathered during these interrogations is used against the defendant. OHCHR interviews, 12 January 2018, 23 March 2018, 2, 14, 16 and 20 January 2020. In territory controlled by ‘Donetsk people’s republic’, the relevant ‘legislation’ on the legal status and activities of defence lawyers was adopted on 20 March 2015 and the lawyers association was established on 20 June 2015. In territory controlled by ‘Luhansk people’s republic’ the relevant ‘legislation’ was adopted on 28 August 2018 and the lawyers association was established on 9 January 2019. E.g. when the defendant is a minor or has a mental disability, or faces ‘charges’ of a ‘crime’ punishable by a life sentence or the death penalty (‘Donetsk people’s republic’) or more than 15 years of imprisonment (‘Luhansk people’s republic’). Most of the conflict-related crimes in the ‘republics’ are considered grave crimes punishable by a life sentence or the death penalty (‘Donetsk people’s republic’) or more than 15 years of imprisonment (‘Luhansk people’s republic’). Thus, participation of defence lawyers in conflict-related criminal cases is mandatory according to ‘legislation’ of both self-proclaimed ‘republics’ and shall be ensured free of charge where the defendants cannot pay for it. Article 36 of the ‘law of Luhansk people’s republic’ ‘on the bar and legal practice’.