Question 4.
What is the situation in your Member State – covering both national law and national practice - with respect to the right of access to the materials of the case regarding:
(a) access itself to the material?
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Austria
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The suspect has the right to have access to the file at the police, the prosecutor and/or the court. This right includes the right so see all evidence (§ 51(1) StPO).
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Belgium
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Good access to the material
(a) access itself to the material?
YES
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Bulgaria
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Both academicians and practitioners in Bulgaria take the view that the right of access to the materials of the case is guaranteed in full scope and in full compliance with the requirements of the Directive. Access to the materials is granted in a way to allow the effective exercise of the rights of the defence. This holds true as regards both national law and practice. I fully share this view.
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Croatia
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According to the Article 184, Paragraph 4 of CPC, the suspect has the right to have access to the file at the police, the prosecutor and/or the court.
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Cyprus
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According to article 7(2) of the Criminal Procedure Law (Capital 155) If summon or warrant issued according to article 44 (summon or warrant for compelling attendance) of the Criminal Procedure Law (Capital 155) is served to the defendant, he/she has the right, with a written request submitted to the prosecution, to have free of charge access to statements and documents gathered during the investigation of the case concerning the criminal offence brought before the Court.
According to the European Arrest Warrant Law (L. 133(I).2004,) the arrested person or his/her lawyer may ask and receive copies of all the documents, by the competent authority.
It must be stated that when the accused applies in writing for the material evidence of the case then he must pay a charge to the Police (it costs a few cents per page and if there are photographs the cost is considerably more). The Directive makes a provision for the material to be provided free of charge.
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Czech Republic
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The access to the case-file is regulated in Section 65 of CCP.
The suspect does not have a right to access the case-file.
The right to inspect the case-file belongs to the accused. Until the person is considered an accused (see answer to the question 3(a)), the individual is not allowed to inspect the file against him.
The right to the inspection concerns the whole file with the exception of the record about judges´ voting and personal data of a witness whose identity is kept a secret. This right includes the right to make any notes or make copies on own costs.
The right to inspect the file may be restricted only in the pre-trial stage when the public prosecutor or the police authority may deny the access due to “serious grounds”. When the police authority denies access to the file, the person may request review of the seriousness of these grounds; the public prosecutor is obliged to speedily review them. The right to inspect the file cannot be denied to the accused and his lawyer once they were informed about the possibility to inspect the file (they are informed about this right at the very end of the investigation; subsequently the police authority decides, whether to submit to the prosecutor a motion to submit an indictment). It flows from the previously mentioned that should the prosecutor deny the access to the file, there is no right to request review of such decision.
As for the suspect´s lack of this right, in practice it is difficult for the defence that the client may be months or even years considered by the law enforcement authorities as a suspect but does not have access to his file and thus cannot properly defend.
In practice the vague term “serious grounds” justifying denial of the access to the file is typically applied by the Police before the accused is first questioned in the matter so that he does not have knowledge about the evidence the Police have against him (e. g. what the witnesses said etc.).
I also experience that sometimes it is a part of the Police´s tactics to deny access to the file.
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Estonia
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According to § 341(1) of CCP, suspects have the right to request access to the evidence which is essential for specifying the content of the suspicion filed against them, if this is required for ensuring fair proceedings and the preparation of defence.
According to § 35(2) of CCP, the accused is entitled to examine the criminal file through his/her counsel.
If a prosecutor's office declares a pre-trial proceeding completed, the prosecutor's office shall submit the criminal file for examination to the defence counsel (§ 223(3) of CCP).
In principle, the right of access to materials is guaranteed.
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Finland
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Is provided for in the Criminal Investigation Act. However, the access is only allowed to material which “may effect or may have effected” to the handling of the suspects’ case. This is usually problematic in such criminal investigations where wiretapping is carried out. The police are basically allowed to handpick the wiretapped conversations that they believe can have relevance in the matter. But all material is sent to all parties (prosecutor, court, defendant, complainant) in the same extent.
One exception to access to material are crimes against children, in which the complainants are interviewed on video. The videos are usually never sent to the suspect but he/she is rather given the opportunity to acquaint himself with the material at the police station. From a counsel’s point of view this can be problematic, since it may be a long way to the nearest police station. It is also not often possible to arrange for a long meeting with a client in which both the counsel and the suspect watch the video and thereafter, usually on the spot, need to come up with possible additional questions to the child complainant or witness. It would be good if the videos could be released at least to the Members of the Bar, who are bound by professional code of ethics.
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France
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All the rules are the same except in case of offense of minus that one year of jail between for the accused deprived of liberty and not (circulaire du 19 décembre 2014, page 2 et 3).
Absolutely nothing is scheduled as access to material of the case. Police refuse to provide the so called “file” and only give access to minor importance information such as the legal notification of custody (which is obvious when examined in a police station), medical reports, information on the rights given during custody (article 63-3-1).
France as deliberately decided not to implement the directive on this issue to retrain the lawyers to acces to the file during custody to let the police freely conduct the interviews and investigations.
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Germany
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Greece
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The access itself to the material is provided under the condition that par. 3 of Article 101 of the Greek Code of Criminal Proceedings is not applicable. According to this, since the right to a fair trial is not affected, no material that can endanger fundamental rights of others or public national interest is provided. The defendant may, however, object through his counsel.
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Hungary
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At the time of finishing the investigation, the accused may have access to all materials of the investigation.
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Ireland
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As stated above the material is generally only made available to the accused person after their first appearance in Court and following a direction from the judge.
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Italy
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As a rule, access to the material (check and reading)is free of change, but getting copies can be in some cases very expensive. Only accused entered to legal aid can get copies free of charge.
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Latvia
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Access to the material is granted, when the law allows it
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Lithuania
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According to the law the suspect has a right of access to the materials of the case during the pre-trial investigation stage but this right could be deprived by the prosecutor’s decision under the argument that getting familiar with the case material could infringe the success of the pre-trial investigation. When the pre-trial investigation is finished, the person enjoys the right of access to the materials of the case that is gong be filed to the court.
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Luxembourg
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Information concerning the materials of the case in respect of article 85 of “code instruction criminelle” is made available to the lawyer and the suspected person only after first interrogation by the investigating judge.
This procedure seems to be in conformity with the European human rights jurisprudence. (see AT v Luxembourg case)
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Malta
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Granted upon request (save materials are not subject to privilege)
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Poland
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Parties of the criminal proceedings (as well as their defence lawyers, proxies and statutory representatives) have the right of access to the files of the court case and they are allowed to prepare copies of these files. Other person are entitled to the access to files of concrete criminal case in the proceedings before the court when it’s approved by the president of the court (Article 156 §1 and §2 CCP). Parties of the criminal proceedings (as well as their defence lawyers, proxies and statutory representatives) are entitled, upon their motion, to access - in the course of the proceedings before the court - to the materials of files of the preparatory proceedings in the scope they weren’t submitted to the court (Article 156 §1a CCP). If the files include materials containing classified information (confidential or strictly confidential), reviewing of the files and preparing their copies must be restricted and these activities take into account conditions and demands determined by the president of the court or by the court (Article 156 § 4 CCP). On the grounds of the Article 156 § 5 CCP, parties of the criminal proceedings (as well as their defence lawyers, proxies and statutory representatives) have the right of access to the files of the preparatory proceedings if there doesn’t appear a need to safeguard the proper course of the criminal proceedings or the protection of the important interest of the state. In the frames of this right entitled subject might prepare copies of the files and receive – for value – certified copies of these files. This right can be exercised by the parties of criminal proceedings also after the conclusion of preparatory proceedings. On the approval of public prosecutor, other persons exceptionally could have the access to the files of preparatory proceedings. The Polish Code of Criminal Proceedings of the 6th of June, 1997 (amended many times) also includes the regulation that parties of the preparatory criminal proceedings and some other subjects entitled to challenge the decision of the police or public prosecutor on discontinuation of the criminal proceedings (so, inter alia, a suspect) have the right to peruse the files of the preparatory proceedings (Article 306 § 1b CCP). In practice this right is exercised but not commonly (entitled person or institution deciding to exercise the mentioned right before challenging the decision on discontinuation of the criminal proceedings is asked for submission of motion to peruse the files of preparatory proceedings; such motion is attached to files of discontinued preparatory proceedings).
If in the course of preparatory proceedings a motion to apply or to extend the temporary arrest is lodged, a suspect and his or her defence lawyer shall have a prompt access to the files of the criminal case in the area of materials including evidences presented in the aforementioned motion (see the amended Article 156 § 5 a CCP being in force from the 2nd of June, 2014). This rule harmonizes with the European Union standard and it guarantees the fairness of the criminal proceedings. It should be noted that this rule shall be considered in the context of the new Article 249a CCP which states that the grounds of the court decision concerning the application or extension of the temporary arrest shall be only findings in the light of evidences opened to a suspect (an accused) and his or her defence lawyer (Cf. e.g. A. Grochowska, Ł. Malinowski, Prawo stron do informacji w postępowaniu karnym w świetle nowelizacji kodeksu postępowania karnego z dnia 27 września 2013 r. oraz z dnia 28 listopada 2014 r. [in:] M. Rogacka-Rzewnicka, H. Gajewska-Kraczkowska, B.T. Bieńkowska (eds.), Wokół gwarancji współczesnego procesu karnego. Księga Jubileuszowa Profesora Piotra Kruszyńskiego, Warszawa 2015, pp. 126 – 127).
The right to information is widely guaranteed also in the sphere of regulations of the Code on Proceedings on Petty Offences of the 24th of August, 2001 (consolidated text – Journal of Laws of the 26th of March 2013, item 395 with subsequent amendments).
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Portugal
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The access of the materials, in practice, is several times not provided appropriately; sometimes the access is limited.
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Romania
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Slovakia
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Both accused and his defence counsel have the right to access the files of the investigation, including evidence and data collected during investigation, except for the voting report and those sections of the report that contain data on the identity of an undercover agent. They have the right to get copy of reports (including operation he was not informed about), to make excerpts and notes, and to have duplicates of the files and the parts thereof (Sec 69 CCP).
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Slovenia
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Access to the materials is granted.
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Spain
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There are serious problems with access to files in police stations. The directive and the law which implemented it does not seem clear. They state that the competent authorities has to show the documents which are « essential to challenging effectively, the lawfulness of the arrest or detention », but, there difficulties in order to identified this type of documents. The police, despite this provision, still deny the access of the lawyer or the person arrested to the file.
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Sweden
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According to Swedish law, there is no unrestricted right of access to the material during an ongoing preliminary investigation.
When a person has been made aware that he or she is suspected of a crime, the person has the right to be informed continuously of developments in the investigation only to the extent it can be made without prejudice to the ongoing investigation.
There is no standard practice of granting continuous access to the material from the preliminary investigation. Such access is in principle granted only on request from the suspected person or the lawyer and then only under certain circumstances (e. g. parts of the material may in certain investigations with extensive amount of reading materials be provided to the lawyer).
Information about specific facts and circumstances from the investigation is usually only provided to the suspected during the questionings and then as “basis for confrontation”.
Before the prosecutor decides on prosecution the investigation material is made available to the suspected person. The material is compiled in a record of the preliminary investigation. At this stage the suspect has no no formal right to get a copy of the record. A copy can be made available e. g. at the police station for reading. However, if a lawyer is appointed at this stage, a copy of the record is usually handed out.
As soon as a decision to prosecute has been made, the suspect or the lawyer has a right, upon request, to receive a copy of the record of the preliminary investigation. If public defence counsel has been appointed, a copy shall be delivered or sent to him or her without special request.
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The Netherlands
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Article 30 - 32 NCCP incorporates the right of a suspect to access the file. According to article 30.1 the suspect has the right to access to his file after his first interrogation, but in exceptional circumstances parts of the file may be withheld. However, the reports of his own interrogations cannot be withheld from the suspect. The same goes for reports of investigative actions the suspect or his lawyer were allowed to attend as well as the reports the full content of which were read to the suspect.
Prior to the moment an indictment has been served any request to receive the file should be addressed to the prosecution. The file is not automatically provided: the suspect, or his lawyer, should ask for it.
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UK
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England and Wales
After the release of the individual, the detainee, his legal representative or appropriate adult (if applicable) have the right to inspect the original custody record provided they give reasonable notice of their request. [C§2.5; H§2.7] The information provided in the custody record shall include information about the circumstances and reasons for the detainee’s arrest as well as the grounds for each authorisation of detention. [§2.4]
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Scotland
Access to the material is governed by part VI of the Criminal Justice and Licensing Act 2010, and the Code of Practice (CoP) issued by the Lord Advocate under that Act. The preamble to the Code states that its purpose is to “provide guidance in relation to the disclosure of evidence in criminal proceedings”, and warns that a failure to comply with the Code may result in a breach of Article 6 ECHR.
The CoP contains six “principles of revelation”, which provide guidance to the police as to what information they are required to provide (“reveal”) to the Crown. They are required to reveal, in particular, “all information that may be relevant to the issue of whether the accused is innocent or guilty”.
The CoP also contains six “principles of disclosure”, which provide that the Crown “is obliged to disclose all material information for or against the accused, subject to any public interest considerations”. The Act provides that information is material, and will fall to be disclosed, where the information would materially weaken or undermine the evidence that is likely to be led by the Crown; materially strengthen the accused’s case; or is likely to form part of the evidence to be led by the prosecutor. The duty of disclosure is proactive and requires the Crown to spontaneously disclose material information without any request from the defence.
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Northern Ireland
Access to the material -prior to the interview or in interview evidence will be put to the accused by police to allow the accused to offer any explanation or account that they have to explain their position. Written copies eg of statements are not normally provided at this stage.
At Court- prior to requiring the accused to indicate if pleading guilty or not guilty copies of statements and forensic evidence etc will be served on the accused. All evidence upon which the prosecution seek to rely would normally be served at this stage, although if material becomes available to the prosecution later it can be served. It can take a long time for a case to be prepared for serious criminal charges preparation time of 8-12 months normal without any evidence being served.
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