Question 8.
What is the situation in your Member State – covering both national law and national practice - with respect to the right to challenge any possible failure or refusal to provide information?
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Austria
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As long as the lawyer (or the suspect) knows that he is not fully informed, he can challenge the failure or refusal (§ 106 StPO).
However, it may happen that the suspect is not informed at all (e.g. about the fact that there is an ongoing investigation against him), which practically makes it – in some cases – impossible to challenge the failure.
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Belgium
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As already mentioned, the refusal of the investigating judge to grant (full) access to his investigation file may be challenged before the court of appeal (Chambre des mises en accusation).
This is however NOT the case, for the refusal of the Prosecutor to grant access to his investigation file (the Prosecutor being considered as belonging partly to the executive power (Government), the Supreme court (cour de cassation) considers that no jurisdiction may review such decision of the Prosecutor.
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Bulgaria
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Taking into account the discrepancies having been depicted so far, between national law and national practice, on the one hand, and the requirements of the Directive, on the other, it is to be specified that in Bulgaria, where the rights under the Directive are provided for by national law or in practice, suspects or accused persons or their lawyers have the right to challenge, in accordance with procedures in national law, the possible failure or refusal of the competent authorities to provide information in the meaning of the Directive. This holds true also in the cases observed above, where explicit legal provisions are missing but the exercise of the relevant rights is guaranteed in practice. Failures or refusals to provide information may be appealed in the context of appealing the court judgment as a whole and may be defined by the court of appeal as substantial procedural breaches. This may result in quashing the court judgment of the first instance court.
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Croatia
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According to the Croatian CPA, such failure could be challenged with legal remedies.
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Cyprus
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When the suspect or accused is not deprived of his liberty then a breach of the Judges Rules mentioned above may be received in evidence, if the Court is satisfied that the statement is voluntary.
When the suspect or accused is deprived of his liberty and the right to information of the arrested person is breached then his/her statement may be rendered inadmissible in evidence.
Furthermore If a member of the police force breaches the right of a detainee of access to information in criminal proceedings raised against him/her, the member of the Police responsible will be (a) criminally liable punishable with imprisonment up to six months or a fine not exceeding 1700 Euros, (b) disciplinarily liable under the police law. Be it noted that a member of the police force interfering with the unimpeded access of the accused to information concerning criminal proceedings against him/her is likewise disciplinarily liable. Furthermore a right is conferred upon the suspect and the accused whose rights are violated to damages against the Republic and the person or persons responsible for breach or denial of those rights independently of whether he/she has suffered any material damage. (See Articles 32, 34, 36 of the Law 163(I)/2005.)
Also 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, ask 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 1(a).
Such failure could be challenge within standard legal remedies.
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Estonia
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There is no provision in CCP specifically devoted to challenging failures or refusals to provide information. General provisions on complaints (§ 228 of CCP) apply, but this procedure can not be characterized as effective in these circumstances.
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Finland
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This question is quite general, but basically the rules apply as described above. If the investigative authority refuses to provide information about certain documents, this decision can be appealed to the Administrative Court (which is, in our opinion, not an effective remedy). At the hearing stage in District Court (or the appellate stage), the court can require the prosecutor to complete the investigation, but at least on a principal level, the prosecutor cannot order the police to do so (even though in practice the police does what the prosecutor asks). A request for edition is also possible, but may be a theoretical remedy.
Another thing that is problematic is that even though the investigative authority by law should keep record of material, which is deemed unnecessary and left out of the actual police report, and include this record to the police report, in practice this is not always done. Hopefully the implementation of the Directive will bring positive changes in this regard, but it remains to be seen.
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France
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There are no possibility of challenging it, the access to the file during custody as led to a massive and constitutional litigation before the Constitutional council that ruled that the acces to file is not constitutionally granted. Claims are pending before the ECHR.
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Germany
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Greece
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The right of the defendant to challenge the refusal to provide information is regulated. In practice, the defendant through his counsel may file objections.
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Hungary
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There is a right to challenge.
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Ireland
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It is open in all prosecutions but particularly in more serious prosecutions in the Circuit, Central Criminal and Special Criminal Courts that there are lengthy hearings devoted to the issue of disclosure. The law in relation to disclosure in Ireland is unsatisfactory. It is not anything as well-developed as the law of discovery in civil proceedings. In particular no sworn Affidavit is required and no individual person is identified as being accountable. The Director of Public Prosecutions is accountable in a general way but that is not considered by defence practitioners as being as effective as an individual policeman in a particular case having to list all relevant documents and account for the disclosure exercise. Equally the issue of claiming privilege is unsatisfactory. This is because we do not have a procedure where special independent lawyers are engaged to have sight of documents which the prosecution contend cannot, on grounds of national security or similar, be provided either to the accused or the accused's lawyers. Instead the documents are provided to the judge or judges and they are inspected to make a decision as to whether they are essential for production to ensure the fairness of the trial. The judge of judges does not have the benefit of the instructions of the accused and is not in a proper position to assess what the defence case is likely to be, given that we do not have a written procedure providing a defence case statement in advance of trial.
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Italy
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In the stage immediately after or making application for the voidness of the subsequent act.
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Latvia
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It may be challenged.
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Lithuania
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Any refusal to provide information could be appealed.
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Luxembourg
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Decisions may be challenged by lawyers before the chamber of council with the possibility of appeal before the chamber of council of the court of appeal
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Malta
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Challenge afforded
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Poland
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In the Polish Code of Criminal Proceedings of 1997 there are no provisions separately concerning the possibility to challenge a failure or a refusal of the competent authorities to provide information in accordance with the European Union directive 2012/13. A detainee or a detainee on the basis of a European Arrest Warrant have the right (and they are informed about it) of challenging by the complaint to the court his or her detention. In such complaint he or she can demand to examine the validity (legitimacy), the legality or the correctness of his or her detention (see the Article 246 § 1 CCP). By the way – in the minutes of detention – it’s possible to notify the objections to the contents of the mentioned minutes (see the Article 150 § 2 CCP).
A suspect or an accused having the right of information about their rights don’t have at the same time the exclusive possibility to challenge a failure or a refusal of the competent authorities to provide information in accordance with the European Union directive. A suspect or an accused could notify the objections to the contents of minutes of examination – adequately – in the preparatory proceedings or in the proceedings before the court (see the mentioned Article 150 § 2 CCP). A failure or a refusal by a competent authority to provide information in accordance with the European Union directive 2012/13 might be treated as violation or misapplication of procedural provisions which could have an impact on the decision (verdict) of the competent authority and in this light – it might become prerequisite to lodge an appeal (see the Article 438 point 2 CCP).
In Poland, in practice a failure or a refusal by a competent authority to provide information are raised in appeals.
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Portugal
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The law provides the right to challenge any possible failure or refusal to provide information.
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Romania
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Slovakia
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In case of violation of defence rights, the accused may file an application to have the police actions examined; he/she may file an appeal or an appellate review. Moreover, constitutional complaint could be considered too.
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Slovenia
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Accused persons (and their lawyers) have the right to challenge a failure or refusal to provide information in an appeal against judgement.
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Spain
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In judicial stage it is possible to challenge the lack of information through the current remedies against judicial decisions. The problems arise in police station. If they deny the right to get access to the documents in the police file, the person arrested or his/her lawyer only can issue an habeas corpus, or, otherwise, ask the police to record the petition denied in the moment the act that took place..
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Sweden
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There is no specific appeal procedure to challenge a possible failure or refusal to provide the information on rights. An application for review by a higher prosecutor can be made. The practical effect of such application can be questioned.
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The Netherlands
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Regarding any non-compliance with the law as far as the rights referred to in the Letter of Rights are concerned, imposing of sanctions is not possible. If a non-compliance is established the court is authorized to impose a sanction, but whether a sanction should actually be imposed, and if so the nature of such sanction, depends on the merits of each case and especially on whether the suspect's interests are harmed. The Dutch Supreme Court has explicitly judged that in case a suspect did not get the opportuni-ty to consult a lawyer prior to his first interrogation the results of that interrogation (the statement) can-not be used as evidence and should be excluded. With regard to all other breaches of the law the sanc-tion is unclear and should be determined on a case-by-case basis. An important starting point in deter-mining whether a breach in relation to these rights should result in a sanction is that such breaches ei-ther do not have further detrimental consequences for the suspect (and therefore need not to be sanc-tioned) or can be repaired as a result of which a sanction is not necessary either (for instance: in case a suspect receives his file too late, the court hearing will be postponed to give the suspect sufficient time to prepare).
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UK
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England and Wales
A complaint may be made by or on behalf of a suspect that information about his rights and/or access to records and documents has not been provided as required. [§3.26] In such cases, the matter shall be reported to an inspector not connected with the investigation to deal with as a complaint as soon as practicable. [C§9.2; H§9.3]
Where the complaint is made in the course of an interview by or on behalf of the interviewee, or it comes to the interviewer’s notice, the interviewer should record the matter in the interview record and inform the custody officer. [C§12.9; H§12.10]
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Scotland
Where an accused person considers that the Crown have failed to disclose material information, the Act makes provision for an accused person to apply to the court for a ruling that the information is material and the Crown’s duty to disclose is engaged.
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Northern Ireland
Disclosure judge appointed not trial judge so he can see all materials in diplock i.e. non-jury trials
Criminal Procedure and Investigations Act 1996 Section 8 disclosure application dealt with by trial judge
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