(b) the effect of the derogation (i.e. prejudice the right to a fair trial)?
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Austria
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There is no explicit provision to safeguard the right to a fair trial; however, as soon as the investigation is closed, the suspect must have access to the file (unless another person may be harmed). Therefore, the protection of third persons may be in conflict with the right to a fair trial.
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Belgium
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Could indeed affect the fair trial and right of defence, if the magistrate in charge of the investigation would maintain/repeat his refusal to grant access to the investigation file until the very end of his investigation, because in such case, the suspect could face, due to the time passed in the meanwhile, an impossibility to request effectively (i.e. with a real chance of successful results) some additional investigation acts.
The Belgian law provides mandatory at least on the very end of the investigation, the possibility to request additional investigation acts, but this right could however remain vain if in the meanwhile, the time has passed so long that the material/information to search for the defence would have vanished.
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Bulgaria
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Please see the answer to Question 6 (a) above.
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Croatia
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The suspect or accussed person may lodge an appeal against the refusal decision of prosecutor. Investigating judge has to decide about appeal in 48 hours. The effect of the derogation is that there is no access to the materials.
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Cyprus
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There is no case law in Cyprus on the effect of a derogation but it can be legitimately assumed that our Courts will follow the relevant case law of ECHR (see inter alia Rowe and Davis v. UK 30 EHRR 1). According to the case law of the Supreme Court of Cyprus there cannot be a valid conviction if there was a breach of the right to a fair trial under Article 30(2) of the Constitution. Therefore it can be validly said that if the derogation was unjustified the right to a fair trial will be prejudiced.
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Czech Republic
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See answer to the question 4(a).
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Estonia
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The effect of the derogation is that there is no access to the materials until the prosecution allows access to be granted. It is possible (and it has happened in practice) that suspects are remanded in custody, relying on materials which the suspect nor counsel have had any access to.
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Finland
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See answer above. This is a major problem, since the Administrative Court does not feel it has the tools to ensure fair trial but transfers this safeguarding to the general courts. However, the problem is that a general (at the first instance District) court may have the tools to ensure fair trial only at the main proceedings, not at the coercive measures stage, when it possesses all other material in the case. This can happen years after the deprivation of liberty already has ended.
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France
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As no real access to the “real file” is granted, no dergation is scheduled.
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Germany
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Greece
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This derogation is not common in practice and no statistic data exist.
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Hungary
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No prejudice the right to a fair trial.
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Ireland
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If material is being withheld which would place innocence at risk a Court should indicate to the prosecution that while they can withhold the material they must discontinue the prosecution. This is rarely done in practice.
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Italy
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It depends from case to case
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Latvia
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None, because the court gets acquainted with the material.
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Lithuania
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See the answer (a).
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Luxembourg
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yes
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Malta
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Not clear
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Poland
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It seems that current regulations of the Polish Code of Criminal Proceedings regarding the issue of derogation from the right of access to the materials of the case harmonizes well with the right to a fair criminal proceedings and with the right to defence. The Polish legal standard corresponds with the standard proposed by the EU directive 2012/13 (implementation of this standard made by the Polish law-maker seems to be correct). Unfortunately, there are no information about the aberrations of practical dimension of this legal standard. Theoretically such aberrations are possible, especially at the stage of preparatory proceedings (for instance too wide interpretation of conditions of derogation from the right of access to the materials of the case, i.e. the condition of necessity to safeguard the proper ongoing of the proceedings or the condition of necessity to protect the important interest of the state).
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Portugal
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Sometimes prejudiced the defence rights.
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Romania
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Slovakia
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In some case it might threaten the ways of defence of the accused person and the right of the authorities to refuse the access to the file could be intentionally abused.
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Slovenia
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Spain
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It depends on the case. If the secrecy takes too long and during it the investigator judge produces personal evidence, it is difficult afterwards, in the investigation stage or in trial stage, to challenge the outcome of this evidence already provided (i.e. expert statement, witness statement…who made their statement without a cross-examination). If the evidence produced during the period of secrecy is a documental one more than a personal one, the rights of the defense may be not affected. The largest period of secrecy is the major possibility of affecting the right.
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Sweden
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During an ongoing investigation situations might occur when a refused access to material might prejudice the right to a fair trial.
One example can be pointed out on cases with an extensive amount of investigation material when there is a time limit for the trial to start, starting from the date the indictment is submitted to court (e.g. when the accused person is detained or when the accused is a minor person). If the lawyer receives the material only when the indictment is presented to court, there is a limited time to go through the material and prepare the defence, which obviously might prejudice the right to fair trial.
A refusal of access to material might also affect the possibilities of challenging coercive measures carried out in the course of the investigation.
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The Netherlands
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See (a) above.
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UK
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England and Wales
See the answer to (a) above.
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Scotland
As noted above, withholding the information must be consistent with the accused’s right to a fair trial.
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Northern Ireland
Depends on nature of material not disclosed. Disclosure judge will look at material and direct that it be disclosed or not. If he directs disclosure and prosecution are not willing to do so then case will be stayed
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(c) the means by which the derogation is exercised (i.e. by a judicial authority or subject to judicial review)?
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Austria
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The derogation is subject to judicial review (§ 106 StPO).
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Belgium
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Yes, the investigating judge, or the Prosecutor (but the decision of the latter to refuse the access to his investigation file is not subject to a right of appeal (in the difference of the decision of the investigation judge).
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Bulgaria
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Please see the answer to Question 6 (a) above.
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Croatia
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The derogation is subject to judicial review. See previous answer.
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Cyprus
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According to article 7(5) of the Criminal Procedure Law (Capital 155), in case that the prosecution does not provide the defendant access to part of the statements and documents obtained during the investigation of case, he/she may, at the first hearing of the case, request the Court to examine the reasons for refusal and to issue any order that it is considered necessary.
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Czech Republic
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See answer to the question 4(a).
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Estonia
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Derogation is exercised by a decision by the prosecutor. A complaint against the decision can be submitted to the court (i.e. judicial review is available).
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Finland
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See answers above. Decision is made in the first hand by the head of investigation, subject to appeal to Helsinki Administrative Court.
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France
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As no real access to the “real file” is granted, no dergation is scheduled.
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Germany
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Greece
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It is exercised by an investigator or an interrogator-judge.
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Hungary
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Ireland
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Generally the grant of immunity from production is a judicial function.
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Italy
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None, except the ordinary time limit to apply for invalidity and nullity of the trial for the infringement of the free and full exercise of the right to defence. Sometimes even together with the appeal against conviction.
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Latvia
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By person directing the proceedings.
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Lithuania
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According to Lithuanian law, the derogation is lead by a prosecutor. The prosecutor’s decision is subject to a judicial review whilst in practise pre-trial investigation judges mostly do not turn down the decision of the prosecutor in regard of the derogation.
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Luxembourg
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Refusal opposed by written decision by the investigating judge and subject to appeal
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Malta
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Judicial authority
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Poland
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In Poland, the means by which the derogation from the right of access to the materials of the criminal case is exercised are:
- in the preparatory proceedings – a proper decision (the order) is made by the public prosecutor (such order might be challenged with the complaint lodged to the court);
- in the proceedings before the court - a proper decision is made by the judicial authority (such decisions are: the order of the president of the court or the decision of the court). These decisions cannot be challenged by the complaint.
The current legal standard of the Polish Code of Criminal Proceedings corresponds with the legal standard determined in the EU directive 2012/13. In practice, the mentioned standard is respected.
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Portugal
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The derogation is exercised by a judicial authority.
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Romania
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Slovakia
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In pre-trial period the judge may refuse the accused or his lawyer to access the whole content of the file in the proceeding on detention, apart from the information related to the facts and evidence relevant for the decision on the detention. The investigator officer and prosecutor may refuse the access to the file from the abovementioned reason (a).
In trial stage is no derogation permissible.
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Slovenia
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The derogation is exercised by a judicial authority.
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Spain
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Judicial authority. It is possible to challenge the decision through the current remedies against judicial decisions.
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Sweden
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Documents held by the investigative authority
During an ongoing investigation, it is the leader of the investigation, normally a prosecutor, that determines whether and to what extent access to material shall be granted. There is no specific appeal procedure to challenge a refusal. An application for review by a higher prosecutor can be made.
Documents held by the court
A court´s decision to refuse access to specific materials of the case can be challenged by an appeal to a higher court.
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The Netherlands
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See (a) above.
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UK
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England and Wales
See the answer to (a) above.
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Scotland
As noted above, the prosecutor must apply to the court for an order for non-disclosure.
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Northern Ireland
Means by which the derogation is exercised- judicial decision. Applications made by the prosecution, normally certified by a government Minster that there are public interest immunity issues and on foot of that, application is served on the accused and they are entitled to make submissions to the Court about the PII application. The ultimate decision is made by the Judge as to whether the material is to be released or retained.
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