The right to legal assistance & political games

Eight years have gone by since Parliament decided that “a person arrested and held in police custody at a police station or other authorised place of detention shall, if he so requests, be allowed as soon as practicable to consult privately with a lawyer or legal procurator, in person or by telephone, for a period not exceeding one hour”. And yet, throughout these years, a little note that says ‘This article is not yet in force’ rested at the foot of Article 355AT of our Criminal Code which granted such a right. Now, because of some political wrestling, the note is to be finally removed. One can surely ask: is this the way by which human rights are made to be respected?

Over the years, innumerable abuses have been allegedly committed by the police and their aids thanks to this little note. Of course, none of them can ever be possibly proved. Because it is the word of the ‘bad guy’ against, not one, but many ‘good guys’. I have personally seen, both in the lower and upper courts, such allegations being made, and sometimes I was sufficiently convinced that they were not fabricated. Time and time again, they were quashed and quelled under the oaths of more than one policeman, sometimes high-ranking ones.

This denied right was sustained by other improper structural practices. I limit myself to mention just two. One of these is the fact that the police still do not video-tape questioning sessions with arrested or detained persons. Again, many allegations have been made in this regard against investigating police, and, again, none of them can be ever possibly proved. Minister after Minister have pledged that such recordings will some day be introduced, but they never were. This only adds to the imperative need for arrested persons to be assisted by a lawyer of their choice.

The other irregularity I want to mention, this time sanctioned by Article 355AS of our Criminal Code, is “the duty of the Police to inform without undue delay the person arrested or detained of his right to request that a relative or friend be informed of the fact of his arrest and of his whereabouts”. Frankly speaking, this right is very frequently not respected, and sometimes may have been even flatly denied. I have personally come across various cases where relatives or friends of arrested persons simply did not know the whereabouts of their loved ones for hours on end and sometimes, believe me, for more than a day.

The reasons given by our civil authorities (sometimes to me personally) for denying the right of arrested people to be assisted by a lawyer or to have questioning sessions video-recorded are mainly two: undergoing investigations may be jeopardized, and the police would be less liable to secure indictments.

Apparently, the basis of such reasons is the fact that what the police desperately try very hard to obtain from an arrested person during questioning is a statement. In the large majority of cases this will be the only ‘proof’ they will have to uphold their case before a court of law. Indeed, with less statements of this sort, the police will appear to achieve less. This, in a highly politicised so-called ‘crime control performance culture’, is catastrophic to the police. Since they are, together with the AG’s office and the judiciary, a form of fairly direct government micro-management, they really cannot afford to look bad in this way.

This, in the last reckoning, is what this whole issue is really all about.

Seen from another angle, not allowing an arrested person to be assisted by a lawyer or have his or her questioning sessions video-recorded is, in truth, intended to compensate for the lack of adequate resources by the police to ‘solve’ cases. Securing a statement is their easy way out to make up for this shortage.
Though many an international body with which my colleagues and I keep contact (such as the CPT, Amnesty International, the Commonwealth, the EU, the Human Rights Watch, and the Council of Europe, amongst others) admit that this state of affairs is highly irregular, they were powerless to change it, since they cannot interfere in any criminal justice process. It was up to Government to do so. But Government, up till a few days ago, had absolutely no political will to put matters right.

All of a sudden, that political will has been found. Not because, it seems, of some newly discovered affection for human rights but to defuse a highly volatile political situation. This, I submit, is not the correct attitude with which such matters should be decided. Its either Government truly believes in human rights or whether it esteems performance more than their respect.

Of course, I am pleased that soon arrested persons will be given the right to consult a lawyer or legal procurator. But I am concerned that other human rights of people in custody or in prison will only begin to be respected if caught in the middle of political strife. In a supposedly civilized country, I think, respect of human rights is not a game.

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