Question 6.
What is the situation in your Member State – covering both national law and national practice - with respect to the derogation from the right of access to the materials of the case regarding:
(a) the grounds on which the derogation is granted (see (a) and (b) above)?
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Austria
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A derogation to the right of access to the file is possible (§ 51(2) StPO)
- if such access may lead to a serious harm to another person (regarding life, body and freedom); access may be limited to the name and any document that may allow to identify the third person;
- until the end of the investigation if the immediate access may be a serious threat to the purpose of the investigation, which must be established on the basis of specific circumstances.
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Belgium
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Derogation only (art. 61ter, § 3, Belgian criminal procedure Code) :
“if the investigation requires it”
“if the access to the investigation file would present a danger for the persons or for their private life”
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Bulgaria
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As pointed out in the answer to Question 4 (с) above, Bulgarian law does not provide for the derogations in the meaning of Article 7.4 of the Directive and they never apply in practice. Access is granted to all the materials collected with no limitations whatsoever, both in the pre-trial and the trial stage of proceedings.
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Croatia
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A derogation to the right of acces to the materials is possible:
- if such access may lead to a serious harm to the purpose of investigation,
- if such access may lead to endanger of another person health or life:
- if such access may lead to endanger of large-scale property.
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Cyprus
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According to article 7(4) of the Criminal Procedure Law (Capital 155) If the right to fair trial is not prejudiced, access to part of the statements or documents may be refused if such access may lead to a serious threat to the life or the fundamental rights of another person or if such refusal is strictly necessary to safeguard an important public interest, such as in cases where access could prejudice an ongoing investigation or seriously harm the national security of the Republic.
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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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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.
Such grounds are obviously below the standard provided by Article 7 of the Directive.
NB! These grounds are also applicable to materials related to challenging detention.
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Finland
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At the pre-trial investigation phase, the head of investigation makes the decision. If access is refused, a decision needs to be made, including the grounds of not allowing access. This decision can be appealed to the Helsinki Administrative Court, but this is not an effective remedy already due to the fact that a decision from the Administrative Court will take ca 1 year to get (and that decision can also be appealed even by the investigative authority to the Supreme Administrative Court), and secondly due to the fact that the legal provisions applied are different from those applied when dealing with a case in ordinary courts.
We have had rulings in which the Administrative Court states that the investigating authority has not breached the Act on the Openness of Government Activities and that ensuring a fair trial is the responsibility of the court dealing with the principal (criminal) case.
A possibility to obtain information exists in theory by way of an edition request, but this kind of a request would require the person asking for documents to be able to specify which document he would like to have and what influence it could have in his case. As can be understood, it’s not very easy to do so if you don’t know what kind of material the investigative authority has in its possession.
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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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Under par. 3 of Article 101 of the Greek Code of Criminal Proceedings, 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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In case of finishing the investigation, all materials are accessible. Derogation may only apply to national state secret.
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Ireland
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During periods in custody there is no entitlement currently understood to access to the full (or any) case materials and accordingly an issue of derogation does not arise. The directive will undoubtedly lead to further litigation in Ireland about the extent to which information should be released.
Once the case proceeds to Court, the Court will direct that the particulars of evidence be provided to the defendant. The prosecution also have an independent duty of disclosure.
If the prosecution have material which is relevant but which they claim should be withheld on grounds of national security or similar, they must seek a ruling of the Court to that effect. The usual privileges sought are, informer privilege not disclosing the source of information received by the police and national security.
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Italy
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In specific cases, a part of the witnesses can be covered, especially for the names. There is note a rule about it. In practice it is believed admissible for the safety of the witness or the secrecy of linked investigations
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Latvia
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The material contains state secret.
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Lithuania
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As it was mentioned above, the prosecutor can refuse the suspect or/and his/her lawyer the access to the case material under the argument that getting familiar with the case material can infringe the success of the pre-trial investigation. It is obvious that such argument is simply vague and prejudices the right to a fair trial.
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Luxembourg
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mostly based on an argumentation similar to (b) above.
But the decision not to grant access may be subject to appeal at the chamber of council of appeal
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Malta
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Save (b)
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Poland
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According to the Article 156 § 4 CCP the limitation of the access to files of a criminal case in the proceedings before the court is exceptionally possible if there appears a danger to reveal classified information (confidential or strict confidential as defined in the act of the 5th of August 2010 on the protection of classified information – Journal of Laws of the 1st of October, 2010, No. 182, item 1228 with subsequent amendment). However the Article 156 § 4 CCP doesn’t create a basis for derogation from the right of access to the materials of the case which an accused or other persons are entitled to but it solely creates a basis for conditions and circumstances under which such right could be exercised. So, the right of access to materials of the case (reviewing documents collected in the files and making their copies) shall be exercised with the respect to conditions and demands established by the president of court or by the court (for instance the access to the materials of the case will be possible only in the secret office of the court). The mentioned conditions and demands are determined in the order of the president of the court or in the decision of the court. Such order or such decision cannot be challenged by the complaint. Generally, there exists a prohibition to deliver to an entitled person (e.g. an accused person) copies of materials certified by the competent judicial authority. The exception from the mentioned prohibition is for example a situation described in the Article 157 § 2 CCP. Due to this regulation, if there is a decision to hear a criminal case at a non-public sitting made on the grounds of the important interest of the state, entitled persons (e.g. an accused person) shall receive just one copy of the judgment concluding proceedings without its reasons. Another exception is found in the Article 128 § 1 CCP which states that decisions and orders are delivered in certified copies if the law requires their delivery.
In turn, the Article 156 § 5 CCP states that entitled persons (e.g. suspects) have the right of access to materials of the criminal case in preparatory proceedings (also to make their copies) if there is no necessity to safeguard the proper ongoing of the proceedings or to protect the important interest of the state. So, the right of access to materials of the criminal case in preparatory proceedings might be limited (derogated) if one of two above-mentioned general prerequisites is fulfilled. In practice first of the mentioned issues includes especially situations of serious, real fear of criminal collusion and obstruction of justice. The second issue includes especially situations of the protection of classified information (for instance with status ‘confidential’ or ‘strictly confidential’) or situations like the risk of early discovery of evidences, their loss or destruction, or the intimidation of witnesses or other suspects. (Cf. inter alia: P. Wiliński, Odmowa dostępu do akt sprawy w postępowaniu przygotowawczym, „Prokuratura i Prawo” No. 11, 2006, p. 81). According to the Article 159 CCP in case of denial the access to files of criminal case in the preparatory proceedings, the parties (for instance the suspect) might challenge this with the complaint. The order of public prosecutor concerning the denial of access might be challenged with the complaint lodged to the court.
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Portugal
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The grounds mentioned above (a) and (b) may derogate the right to access to the materials of the case.
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Romania
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Slovakia
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if such refusal is strictly necessary to safeguard an important public interest, such as in cases where access could prejudice an ongoing investigation
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Slovenia
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The derogation is granted if grounds under (iii), (a) and (b) above are met.
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Spain
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Only under special circumstances: danger for the investigation, or for persons, in serious crimes.
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Sweden
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As explained under Question 4 (a)-(b), during an ongoing investigation access to certain materials may be refused in situations where access could prejudice the investigation. A decision regarding access to material is taken by the leader of the investigation.
If the case goes to court, the suspected or accused person is in principle entitled to see all information in the case. The right is unrestricted concerning all the information upon which a judgment and decision is based.
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The Netherlands
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"In the interest of the investigation" the file, or part of it, can be withheld. Further, the prosecutor can decide certain parts of the files will not be provided to the suspect in the interest of the protection of privacy, the investigation and prosecution or serious grounds of general interest. This withholding should be notified to the suspect (article 30.4 and 32.4 NCCP). The prosecutor's decision can be opposed by filing a complaint with the examining judge.
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UK
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England and Wales
Whereas the Directive envisages strictly defined circumstances in which access to materials may be refused, Code of Practice C provides that the right to information about the accusation may be derogated from by the investigating officer who may withhold details of the accusation if disclosure might prejudice the criminal investigation. [C§11.1A; H§11.1]
Nothing in the Code of Practice C requires the recording or disclosure of the identity of officers or other police staff if the officer or police staff reasonably believe recording or disclosing their name might put them in danger. In these cases, they shall use their warrant or identification numbers and the name of their police station. The purpose of this derogation is to protect those involved in serious organised crime investigations or arrests of particularly violent suspects when there is reliable information that those arrested or their associates may threaten or cause harm to those involved. In case of doubt, an officer of inspector rank or above should be consulted. [C§2.6A; H§2.8; Note 2A]
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Scotland
Where the prosecutor is in possession of information which requires to be disclosed in terms of the Act but if the item of information were to be disclosed there would be a real risk of substantial harm or damage to the public interest, withholding the item of information would not be inconsistent with the accused's receiving a fair trial, and the public interest would be protected only if an order for non-disclosure were made, then the prosecutor may apply to the Court for an order for non-disclosure.
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Northern Ireland
(a) Public Interest Immunity Applications
Material not relevant – test is undermine prosecution or assist defence case
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