Chapter 6 • The Right to a Fair Trial: Part I – From Investigation to Trial The right of access to legal assistance must be effectively available, and, where this has not been the case, the Human Rights Committee has concluded that article 14(3) was violated.72 This provision was of course also violated where the person concerned did not have access to any legal assistance at all during the first ten months of his detention and, in addition, was not tried in his presence.73 However, this, like many other cases dealt with by the Human Rights Committee, was an extreme case, since it concerned the situation of detainees held in the shadow of a dictatorship. ***** In its Resolution on the Right to Recourse and Fair Trial, the African Commission on Human and Peoples’ Rights reinforced the right to defence contained in article 7(1)(c) of the African Charter by holding that in the determination of charges against them, individuals shall in particular be entitled to “communicate in confidence with counsel of their choice”. This right was violated in the case of Media Rights Agenda, acting on behalf of Mr. Niran Malaolu, who was neither allowed access to a lawyer, nor represented by a lawyer of his own choice.74 ***** The European Court of Human Rights has observed that “the European Convention does not expressly guarantee the right of a person charged with a criminal offence to communicate with defence counsel without hindrance”; but instead it inter alia referred to article 93 of the Standard Minimum Rules for the Treatment of Prisoners adopted by the Committee of Ministers of the Council of Europe by resolution (73) 5, which reads as follows: “An untried prisoner shall be entitled, as soon as he is imprisoned, to choose his legal representative, or shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him, and to receive, confidential instructions. At his request he shall be given all necessary facilities for this purpose. In particular, he shall be given the free assistance of an interpreter for all essential contacts with the administration and for his defence. Interviews between the prisoner and his legal adviser may be within sight but not within hearing, either direct or indirect, of a police or institution official.”75 The Court further stated that it “considers that an accused’s right to communicate with his advocate out of hearing of a third person is part of the basic requirements of a fair trial in a democratic society and follows from” article 6(3)(c) of 72 See, among many other cases, Communication No. R.2/8, B. Weismann Lanza and A. Lanza Perdomo v. Uruguay (Views adopted on 3 April 1980), in UN doc. GAOR, A/35/40, p. 118, para. 16; and Communication No. R.1/6, M. A. Millán Sequeira v. Uruguay (Views adopted on 29 July 1980), p. 131, para. 16. 73 Communication No. R.7/28, I. Weinberger v. Uruguay (Views adopted on 29 October 1980), in UN doc. GAOR, A/36/40, p. 119, para. 16. 74 ACHPR, Media Rights Agenda (on behalf of Niran Malaolu) v. Nigeria, Communication No. 224/98, decision adopted during the 28th session, 23 October – 6 November 2000, paras. 55-56 of the text of the decision as published at http://www1.umn.edu/humanrts/africa/comcases/224-98.html. 75 Eur. Court HR, Case of S. v. Switzerland, judgment of 28 November 1991, Series A, No. 220, p. 15, para. 48; emphasis added. Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers 237