point in that this right may be derogated from 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.70
The Body of Principles on Detention further add to the rights of all detained persons (whether
charged with a criminal offence or not) in relation to legal counsel by providing for the
assignment of counsel where required in the interests of justice if the detained person does
not have counsel of their own choice and without payment if the person has insufficient
means to pay.71 Communications between a detained or imprisoned person and their counsel
are inadmissible as evidence against the detained or imprisoned person unless they are
connected with a continuing or contemplated crime.72
(e) Consular assistance
Persons who are arrested or detained in countries of which they are not a national have
certain rights to consular assistance as set out in the Vienna Convention. Article 36(1)(b)
provides that foreign nationals must be notified of their right to communicate with consular
officials when they are detained by law enforcement officials in member states. If a foreign
national requests consular assistance, officials are required to notify the appropriate consulate
and facilitate communication.
The Body of Principles on Detention 16(2), (3) and (4) provide similar guarantees. Some of
the Terrorist Conventions also refer to consular assistance. The Internationally Protected
Persons Convention in Article 6(2) stipulates that any person who is alleged to have
committed an offence under the Convention shall be entitled to:
(a)
(b)
communicate without delay with the nearest appropriate representative of the State of which he is a
national or which is otherwise entitled to protect his rights or, if he is a stateless person, which he
requests and which is willing to protect his rights; and
to be visited by a representative of that State.73
The Draft Terrorism Convention contains essentially the same wording except that in the case
of stateless persons the entitlement is to communicate to the representative of the State in
70
Principle 18(3), Body of Principles on Detention.
71
Principle 17(2) Body of Principles on Detention.
72
Principle 18(5), Body of Principles on Detention.
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