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Access to a lawyer

01 January 1991

Access to a lawyer
bacdoc September=1992

S v Switzerland (28.11.91) Series A, Vol 220
European Court of Human Rights

Facts

The Swiss police set up a special police unit to investigate the
activities of a protest movement concerned with international
arms dealing and the sale of nuclear power stations to a Latin
American country, then under a military regime. The police
shadowed the members of the movement, tapped the telephones, and
regularly emptied the dustbins of a commune, which was thought
to be sheltering some of the members who had been involved in
arson attacks using explosives. One of those subsequently
arrested was held in custody and, when his lawyer came to see
him, the interview was supervised by a police officer. In
addition, letters written by him to his lawyer were intercepted
and later used for graphological reports.

Decision

Article 6(3)(c) ensures that everyone charged with a criminal
offence is able to `defend himself in person or through legal
assistance of his own choosing'. The court stated that:

`Free communication between a lawyer and his detained
client is a fundamental right which is essential in a
democratic society, above all in the most serious of
cases.'

The government argued that the surveillance was necessary to
prevent collusion, and the potential for this was indicated by
the fact that all the defence lawyers proposed to coordinate
their defence strategy. This argument was rejected by the court.

Comment

In the UK, the provisions of the Prevention of Terrorism Act
1984 (PTA) allow the police to insist on being present during
interviews with lawyers, although this is only at the
precharge stage.

Right to a fair trial

EC Europe Law Civil liberties

Legal Action, John Wadham (legal officer Liberty)