Question 5.
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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See question 4.
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Belgium
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See previous answers
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Bulgaria
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The answer again will be divided in two parts.
The first part will concern detention by the prosecutor and detention on remand by the court as a measure to prevent reoffending or absconding from justice (please see my answer to Question 2 (b) above). As regards these two types of detention, the right to access to the materials of the case in the meaning of Article 7.1 of the Directive is not explicitly provided for by national law. However, this right is guaranteed and exercised in practice with no exceptions whatsoever. Access is provided to all the materials of the case, which allows challenging effectively the lawfulness of detention. Anyway, in my view, in order to reinforce the significance of the right to access to the materials of the case, where a person is arrested or detained, it is necessary to amend CPC by introducing the relevant rules to transpose the requirements of the Directive..
The second part of the answer is to cover police arrest (please see my answer to Question 2 (b) above). As regards police arrest, the right to access to the materials of the case in the meaning of Article 7.1 of the Directive is neither provided for by national law, nor respected in practice. This is a serious flaw and a speedy amendment of MIA is needed in order to make law and practice corresponding to the requirements of the Directive.
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Croatia
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See question 4.
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Cyprus
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According to the Rights of Persons who are Arrested and Detained Law (L. 163(I)/2005) and Article 7 (1) of the Criminal Procedure Law Cap 155, the person arrested and detained or his/her lawyer has the right to access essential documents (copy of the arrest and detention warrant, copy of the application and the affidavit on the basis of which the warrant was issued) which they need to challenge the legality of the arrest or detention. If the case goes to Court, the arrested person or his/her lawyer has the right to have access to the material evidence and documents gathered during the investigation of the case concerning the criminal offence brought before the Court. This provision is also included in the document titled “Rights of a Detained Person”.
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Czech Republic
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The fact that a person is detained does not trigger the right to access the file. The “dividing line” is whether the person is considered a suspect or an accused. See answers to the question 4.
Only the accused may be taken to custody and the accused has a right to inspect the file.
The suspect may be detained, but he has to be within 48 hours handed over to the court which decides in another 24 hours about the custody. In this case, the suspect does not have a proper access to the case-file. The CCP does not specifically regulate this issue. In practice the suspect is often informed during the custody hearing by the judge about the content of the motion of the public prosecutor to take him into custody or his defence lawyer receives the prosecutor´s written motion on the spot during the court, but not in advance. Such procedure makes the defence indeed difficult.
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Estonia
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According to § 341(2) of CCP, suspects have the right to request access to any evidence which is essential in order to discuss whether an arrest warrant is justified and for contesting detention and taking into custody in court.
However, the granting access is subject to a decision by the prosecutor, and the prosecution has a wide discretion to refuse access -- according to § 341(3) of CCP, a prosecutor may make a ruling on refusal to enable access to evidence if this may significantly damage the rights of another person or if this may damage the criminal proceedings. This clause is applicable to all materials, incl materials related to justifying and contesting detention (!). In practice, this clause has also been used to deny access to detention-related materials.
It is my opinion that the relevant regulation which (a) subjects access to a decision by the prosecutor, and (b) gives the prosecutor wide discretion to refuse access, is nothing short of a clear and severe violation of Article 7 of the Directive.
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Finland
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Varies a lot. Usually before or even at the first detention hearing there is very little material the suspect is allowed to acquaint himself with. Before the changes in law in 2014 it was usually enough that the head of investigation told the court – obviously the head of investigation being liable while in office – why probable causes exist for detention. Nowadays this is not enough, but some concrete evidence, such as extracts from interrogations etc. is or at least should be required.
Implementation of the Directive was criticised especially in this regard in the preparation phase by the Finnish Bar Association. Also inter alia the Helsinki Court of Appeal expressed its concerns since the possibly defect implementation can lead to edition request at the appellate level, if proper access to material is not provided at the district court level when dealing with detention requests.
The current situation is therefore still at a preliminary phase in terms of the implementation of the Directive and it remains to be seen how the jurisprudence evolves and if changes in law need to be made.
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France
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The rules are the same (see above).
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Germany
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Greece
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Access to the material is provided to the defendant or his empowered counsel. In practice, the file remains at the Prosecutor’s Office, even when the defendant is in detention or prison. Usually, the counsel receives copies of the file and informs the defendant.
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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. In case of arrest/detention, at the time of arrest of detention the materials underlying the action shall be provided to the suspect and legal counsel.
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Ireland
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As alluded to above the extent to which materials are put before a suspected person during their detention varies from case to case. Increasingly progressive police officers understand the wisdom of the fullest disclosure at the earliest time. However older policemen used to the formerly prevailing practice are inclined to retain material.
A particular frustration for defence lawyers is that in interviews accused persons are confronted with selective quotations from the statements of other witnesses, potentially eyewitnesses etc. Police put the most damaging parts of the statement to the accused person without perhaps adding in detail that would assist them for instance that the purported eyewitness had been intoxicated, or had expressed doubts etc. etc.
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Italy
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Every person deprived of liberty id entitled to have access to the material and so for the lawyers also.
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Latvia
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In law the access to materials that substantiate the detention is granted, but in national practice it is not.
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Lithuania
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The suspect (or his/her lawyer) has a right to access the case material that was presented to the judge deciding upon the detention of the particular suspect.
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Luxembourg
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None of these documents are available before the end of the first interrogation.
During the first interrogation, the investigating judge takes the decision on preventive detention.
So at this precise moment the lawyer or the suspected person are not in possession of above mentioned documents.
This regrettable situation is contrary to the spirit and the text of the directive.
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Malta
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Granted
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Poland
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There is no regulation of the Polish Code of Criminal Proceedings of 1997 clearly giving a detainee (who is not detained on the basis of a European Arrest Warrant) the right of access to materials of the criminal proceedings understood as a possibility to review files of the proceedings and to prepare (or to obtain) their copies. However a competent authority (above all police) shall hand over a detainee a copy of minutes of detention. It seems that provisions of the Article 156 §1 and §2 CCP – in the scope they create a possibility of access to files of proceedings before the court and during preparatory proceedings exceptionally also for ‘other persons’ might be a legal basis to the access to essential documents of such files related to the specific case also for detained persons (if it may have the impact on challenging effectively the detention). Neither the Article 244 § 2 and § 5 CCP nor a model letter of rights of a detainee in criminal proceedings present expressis verbis the right of such detainee of access to materials of criminal case (to review such materials). (Proper regulation of the Code of Criminal Proceedings – the Article 244 §3 – and model letter of rights present the right to receive the copy of the minutes of detention). The practice of making possible for a detainee to have the access to other materials of files of the criminal case (concerning his or her situation) is unknown.
In turn, the Article 607l §4 CCP (concerning a detention on the basis of a European Arrest Warrant) as well as a model letter of rights for persons detained on the basis of a European Arrest Warrant (presented in the Ordinance of the Minister of Justice of the 11th of June, 2015 - Journal of Laws of 2015, item 874) include and clearly inform about the right of the mentioned detainee to receive a copy of the minutes of detention as well as about the right to review the files of the criminal proceedings in the scope referring to reasons of detention. Undoubtedly such possibility enhances a standard of procedural safeguard to challenge the detention more effectively. The practice in Poland respects this standard.
Due to the Article 156 §5a CCP, a suspect and his or her defence lawyer - in case of lodging a motion for application or extension of the temporary arrest in the course of preparatory proceedings - shall have a prompt access to the files of the criminal case in the area of materials including evidences presented in the aforementioned motion. This regulation – which is quite new one in the Polish Code of Criminal Proceedings of 1997 (it’s in force from the 2nd of June 2014) changed seriously the practice towards the respect of the European Union standard in this field.
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Portugal
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The access to the materials, in practice, is several times not provided appropriately (limited during the questioning).
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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 to 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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See previous answers. We have a lot of problems in Police Stations regarding this.
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Sweden
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In addition to the material of the investigation the suspected person is entitled to, as outlined under Question 4, he or she has an unrestricted right of access to the information upon which the decision of arrest or detention is based. The answers below refer to this right.
A general comment that shall be made on this issue is that the right of access to the material as set out in Article 7.1 of the Directive has been implemented into Swedish law as a right of access to information. The relative vagueness of the term information may impede a consistent practice on how the relevant material (e.g. documents, confrontation material, audio and video recordings, see recital 30) shall be presented to the suspect.
(a) access to the material itself
There is no right to receive a copy of the relevant documents. The information of relevance to the decision of arrest or detention can be made available to the suspected person either orally or in writing.
Access to information of relevance to an arrest order
In practice, the suspected person may be provided with the relevant information, only upon request. If a request is made, the prosecutor shall provide the police with the information to be forwarded to the suspected person.
Access to information of relevance to a decision of detention
As outlined under Question 2, a decision of arrest shall be followed by a detention hearing at court. The hearing must not be held more than four days after the apprehension or the execution of arrest.
At the detention hearing the prosecutor shall present the information upon which the request for detention is based. Before the hearing the lawyer is normally provided with a copy of a compilation of investigation material containing documents of relevance to the matter. This compilation is also submitted to the court. Additional circumstances can be, and are not rarely, presented orally at the hearing.
A court decision on detention contains the suspected offence and the legal grounds for the decision.
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The Netherlands
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Article 59a and 60 NCCP provide that in case a suspect is being detained or put in pre-trial detention he should be brought before an examining judge within 3 days and 15 hours, beginning at the moment of his arrest, at the latest. Prior to these proceedings before the examining judge the lawyer receives (part of) the file that should enable him to challenge the rightfulness of the detention and to verify whether there are grounds and a serious suspicion that justifies a remand in custody (inbewaringstelling) or-dered by the examining judge. The file that is provided includes information about the suspects judicial record (justitiele documentatie). As the examining judge needs a copy to enable him to take a decision, the lawyer receives a copy as well. This copy is only delivered to the lawyer a few hours prior to the start of the in chamber hearing of the examining judge. As a result the defense counsel does not have sufficient time to actually study the file, but he has to go through the file very quickly, scanning the most relevant parts.
After having received this file the lawyer does not always have the opportunity to discuss the file with his client prior to the in chamber hearing with the examining judge. This is an important fault as often this is the first time that the lawyer is able to take notice of the evidence the police has collected and there is something at stake: the examining judge may order a remand in custody of 14 days. The importance of this is further emphasized by the fact that a suspect who gets a remand in custody mostly will be held in pre-trial detention until the first public court hearing, which will be scheduled about three months later.
Again also in this stage it is the lawyer who should provide his client with a copy. The examining judge only provides one copy and not an additional one for the suspect.
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UK
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England and Wales
The detainee’s legal representative and his appropriate adult (if applicable) must be permitted to inspect the custody record as soon as practicable after their arrival at the station and at any other time whilst the person is detained on request. Access must be arranged with the custody officer and may not reasonably interfere with the custody officer’s duties. [§2.4] If the person leaves police detention or is taken before a court, the person, their legal representative or appropriate adult (if applicable) shall be given a copy of the custody record as soon as practicable. They remain entitled to obtain a copy for 12 months after release. [C§2.4A; H§2.6] 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]
The detainee or his legal representative have the right to access documents and materials which are essential to effectively challenge the lawfulness of his arrest and detention. Documents and materials will be essential if they are capable of undermining the reasons and grounds which make the detainee’s arrest and detention necessary. The decision about which materials must be made available rests with the custody officer in consultation with the investigating officer. The custody record should reflect the fact that documents or materials have been made available and when. The investigating officer should make a separate note of what documents and materials have been made available and the form in which they have been made available. [§3.4(b)]
The way in which documents and materials are made available is a matter for the investigating officer to determine on a case by case basis having regard to the nature and volume of the documents and materials involved. They may be made available by supplying a copy or by providing supervised access to view. Where view only access is provided, it will be necessary to demonstrate that sufficient time is allowed for the suspect and solicitor to view and consider the documents and materials in question. [Note 3ZA(b)]
For detainees who require translation services, written translations, oral translation and oral summaries of essential documents shall be provided in a language the detainee understands. [§13.10B] The practice to be followed including the timings for the creation and provision of translation is set out in Annex M to Code C and Annex K to Code H. Broadly, translation should be created and provided as soon as practicable; interview records should be created contemporaneously.
The above entitlements apply where the police apply to a magistrates’ court for a warrant of further detention to extend the detention without charge of a person arrested for an indictable offence or make a subsequent application to extend or further extend such a warrant. [C§15.7A; H§14.4-4A]
Neither Code of Practice C nor Code of Practice H address whether access is granted free of charge.
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Scotland
Information relating to detention and arrest is recorded in detention and arrest form, which are disclosed in accordance with the principles set out above.
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Northern Ireland
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