Governments must ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference.
Lawyers’ professional duties include advising clients on their rights and obligations and the working of the legal system; assisting clients in every appropriate way and taking legal action to protect their interests; and assisting clients before courts, tribunals and administrative authorities.
Among other things, the authorities must ensure lawyers are granted prompt and regular visits to and communications with individuals who have been deprived of their liberty, regardless of whether they have been charged with a crime, with adequate time and facilities to communicate and consult freely and in full confidentiality.
States must respect and protect the confidentiality of lawyer-client communications, within the professional relationship. Lawyer-client consultations between a detained person and their lawyer may, at most and then only where security needs require it, “be within sight, but not within the hearing, of law enforcement officials”.
Authorities must ensure that lawyers have access to relevant information, files and documents at the earliest possible time and in any event in sufficient time to enable lawyers to provide effective legal assistance to their clients.
Lawyers must not face adverse consequences for the fact of representing any client. Lawyers “shall not be identified with their clients or their clients’ causes as a result of discharging their functions”. Lawyers should “enjoy civil and penal immunity for relevant statements made in good faith in written or oral pleadings or in their professional appearances before a court, tribunal or other legal or administrative authority”.
The authorities must safeguard lawyers’ security where this is threatened, including by non-state actors, as a result of discharging their functions.
The state must not interfere with lawyers’ ability to travel whether within their own country or abroad, whether the purpose of the travel is specifically to consult with or represent clients, or is to attend conferences, training sessions or similar events related to human rights and the legal system.
In Honduras, not all lawyers are able to exercise their professional activities freely as required under international standards. Death threats against legal professionals have been reported, and some such threats have been carried out. Such threats appear to be particularly strong when lawyers are working with human rights and corruption cases.
The draft law for the Protection of Human Rights Defenders, Journalists, Media Workers, and Legal Practitioners pending in the legislature as of 11 December 2014, has been advanced by the state as a measure to address attacks against the legal profession. This draft law proposes to create a mechanism to receive and address urgent cases of threats and attacks against lawyers, and it will be competent to determine, inter alia, interim and protection measures. Additionally, the National Congress recently amended the Criminal Code to raise the minimum and maximum penalties for homicide or murder when committed against specified persons including judges, prosecutors, public defenders, or other “Operadores de Justicia” (which should be interpreted to include lawyers) involved in the “al Combate de la Criminalidad” (the “fight against crime”).
- 1. UN Basic Principles on the Role of Lawyers, Principle 16(a);
Governments shall ensure that lawyers: (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference;
- 2. See UN Basic Principles on the Role of Lawyers,”Principles
12. Lawyers shall at all times maintain the honour and dignity of their profession as essential agents of the administration of justice.
13. The duties of lawyers towards their clients shall include:
(a) Advising clients as to their legal rights and obligations, and as to the working of the legal system in so far as it is relevant to the legal rights and obligations of the clients;
(b) Assisting clients in every appropriate way, and taking legal action to protect their interests;
(c) Assisting clients before courts, tribunals or administrative authorities, where appropriate.
14. Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.
15. Lawyers shall always loyally respect the interests of their clients.
- 3. UN Basic Principles on the Role of Lawyers, ”Principle
7. Governments shall further ensure that all persons arrested or detained, with or without criminal charge, shall have prompt access to a lawyer, and in any case not later than forty‐eight hours from the time of arrest or detention.
8. All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with alawyer, without delay, interception or censorship and in full confidentiality. Such consultations may be within sight, but not within the hearing, of law enforcement officials
1. A detained person shall be entitled to have the assistance of a legal counsel. He shall be informed of his right by the competent authority promptly after arrest and shall be provided with reasonable facilities for exercising it.
2. If a detained person does not have a legal counsel of his own choice, he shall be entitled to have a legal counsel assigned to him by a judicial or other authority in all cases where the interests of justice so require and without payment by him if he does not have sufficient means to pay.
1. A detained or imprisoned person shall be entitled to communicate and consult with his legal counsel.
2. A detained or imprisoned person shall be allowed adequate time and facilities for consultations with his legal counsel.
3. The right of a detained or imprisoned person to be visited by and to consult and communicate, without delay or censorship and in full confidentiality, with his legal counsel may not be suspended or restricted save in exceptional circumstances, to be specified by law or lawful regulations, when it is considered indispensable by a judicial or other authority in order to maintain security and good order.
4. Interviews between a detained or imprisoned person and his legal counsel may be within sight, but not within the hearing, of a law enforcement official.
5. Communications between a detained or imprisoned person and his legal counsel mentioned in the present principle shall be inadmissible as evidence against the detained or imprisoned person unless they are connected with a continuing or contemplated crime.
In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: … (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
The right to communicate with counsel requires that the accused is granted prompt access to counsel. Counsel should be able to meet their clients in private and to communicate with the accused in conditions that fully respect the confidentiality of their communications. Furthermore, lawyers should be able to advise and to represent persons charged with a criminal offence in accordance with generally recognised professional ethics without restrictions, influence, pressure or undue interference from any quarter.
Lawyers shall have all such other facilities and privileges as are necessary to fulfil their professional responsibilities effectively, including:
(a) Confidentiality of the lawyer-client relationship and the right to refuse to give testimony if it impinges on such confidentiality;
(b) The right to travel and to consult with their clients freely born within their own country and abroad;
(c) The right to visit, to communicate with and to take instructions from their clients;
(d) The right freely to seek, to receive and, subject to the rules of their profession, to impart information and ideas relating to their professional work;
(e) The right to accept or refuse a client or a brief on reasonable personal or professional grounds.
- 4. UN Basic Principles on the Role of Lawyers, Principle 22.
Governments shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential.
- 5. UN Basic Principles on the Role of Lawyers, Principle 8;
All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer, without delay, interception or censorship and in full confidentiality. Such consultations may be within sight, but not within the hearing, of law enforcement officials.
(4) Interviews between a detained or imprisoned person and his legal counsel may be within sight, but not within the hearing, of a law enforcement official.
In order to guarantee the confidential nature of lawyer-client relation, the Special Rapporteur recommends that:
(a) The authorities ensure that all communications and consultations between lawyers and their clients within their professional relationship be confidential. In cases where the client is detained additional measures need to be adopted in order to guarantee a direct and confidential communication of the client with legal counsel;
(b) Lawyers’ files and documents should be protected from seizure or inspection by law and in practice and their electronic communications should not be intercepted.
- 6. UN Basic Principles on the Role of Lawyers, Principle 21;
It is the duty of the competent authorities to ensure lawyers access to appropriate information, files and documents in their possession or control in sufficient time to enable lawyers to provide effective legal assistance to their clients. Such access should be provided at the earliest appropriate time.
“Adequate facilities” must include access to documents and other evidence; this access must include all materials that the prosecution plans to offer in court against the accused or that are exculpatory. Exculpatory material should be understood as including not only material establishing innocence but also other evidence that could assist the defence (e.g. indications that a confession was not voluntary). In cases of a claim that evidence was obtained in violation of article 7 of the Covenant, information about the circumstances in which such evidence was obtained must be made available to allow an assessment of such a claim. If the accused does not speak the language in which the proceedings are held, but is represented by counsel who is familiar with the language, it may be sufficient that the relevant documents in the case file are made available to counsel. (footnotes omitted)
In times of crisis, lawyers must be guaranteed prompt, regular and confidential access to their clients, including to those deprived of their liberty, and to relevant documentation and evidence, at all stages of proceedings. All branches of government must take necessary measures to ensure the confidentiality of the lawyer-client relationship, and must ensure that the lawyer is able to engage in all essential elements of legal defence, including substantial and timely access to all relevant case files.
- 7. UN Basic Principles on the Role of Lawyers, Principle 18;
Lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions.
Governments shall further ensure that all persons arrested or detained, with or without criminal charge, shall have prompt access to a lawyer, and in any case not later than forty‐eight hours from the time of arrest or detention.
Every person and group of persons is entitled to call upon the assistance of a lawyer to defend his or its interests or cause within the law and it is the duty of the lawyer to do so to the best of his ability and with integrity and independence. Consequently, the lawyer is not to be identified by the authorities or the public with his client or his client’s cause, however popular or unpopular it may be.
- 8. UN Basic Principles on the Role of Lawyers, ”Principle
Lawyers shall enjoy civil and penal immunity for relevant statements made in good faith in written or oral pleadings or in their professional appearances before a court, tribunal or other legal or administrative authority.
No lawyer shall suffer or be threatened with penal, civil, administrative, economic or other sanctions by reason of his having advised or assisted any client or for having represented any client’s cause.
- 9. UN Basic Principles on the Role of Lawyers, ”Principle
Where the security of lawyers is threatened as a result of discharging their functions, they shall be adequately safeguarded by the authorities.
- 10. UN Basic Principles on the Role of Lawyers, ”Principle
Governments shall ensure that lawyers … (b) are able to travel and to consult with their clients freely both within their own country and abroad; …
- 11. UN Basic Principles on the Role of Lawyers, ”Principle
Lawyers like other citizens are entitled to freedom of expression, belief, association and assembly. In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional restrictions by reason of their lawful action or their membership in a lawful organization. In exercising these rights, lawyers shall always conduct themselves in accordance with the law and the recognized standards and ethics of the legal profession.
- 12. El Heraldo, “Abogado del ‘Negro’ Lobo denuncia amenazas de muerte” (3 April 2014), last accessed 16 August 2014; Prensa Libre, “Asesinan en Honduras a un abogado que había denunciado amenazas de muerte” (6 August 2013), last accessed 16 August 2014.↵
- 13. UN Special Rapporteur on the situation of human rights defenders, Report to the Human Rights Council on a mission to Honduras, UN Doc. A/HRC/22/47/Add.1A (13 December 2012), para. 94 and 95.
94. The Special Rapporteur received reports that lawyers working for the National Commissioner for Human Rights had been threatened. Staff members of the office of the National Commissioner were continuously exposed to danger, given that, on many occasions, the police were involved in the allegations received by the office.
95. Lawyers working on human rights issues were targeted. A lawyer working for the non-governmental organization Asociación para una Sociedad más Justa was killed in 2006, and other lawyers working for the organization continued to receive death threats.
- 14. Inter-American Commission on Human Rights, 2013 Annual Report, para. 309; El Heraldo, “Aumentan amenazas a muerte contra jueces de lo penal en Honduras” (13 August 2014), last accessed 16 August 2014.↵
- 15. El Heraldo, “CN aprueba en primer debate ley de protección a periodistas” (9 June 2014), last accessed 11 December 2014.↵
- 16. Decree No. 100-2014, La Gaceta, 23 October 2014, num. 33,562.↵