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Access to the case file is not being widely enough provided across the EU, according to a report published by LEAP earlier this year.
Fair Trials’ Legal Experts Advisory Panel (LEAP) has released a survey report providing a snapshot of the situation in 17 Member States, in relation to Access to the Case File - one of the four key issues of concern for LEAP, as highlighted in the EU Defence Rights Movement Paper. This survey report was produced following the expiration of the implementation deadline of the Right to Information in Criminal Proceedings Directive, in June 2014. The report identifies good and bad practice as well as areas where clarification of the Directive are needed from The Court of Justice of the European Union (CJEU). It identified that Member States are failing to respect the gravity of pre-trial detention and overlooking the need to allow it to be effectively challenged.
LEAP participated actively in the negotiations which lead to the adoption of the first three directives developed under the 2009 Roadmap for strengthening procedural rights in criminal proceedings (the ‘Roadmap Directives’). Today, one of LEAP’s top priorities is the implementation of the Roadmap Directives, with a view to ensuring their impact in practice. In October 2014, LEAP met for a dedicated roundtable to develop an implementation strategy, summarised in the paper, Towards an EU Defence Rights Movement.
LEAP concluded that access to the case file prior to questioning is generally lacking – virtually all responses indicate that, at the point of initial questioning (either by police or other investigative authority) suspects do not have prior access to their files. Information is usually limited to an often very basic description of the charge. As a result, there is a general practice of lawyers advising clients to remain silent until the file has been seen.
At the pre-trial investigation stage, access is the rule, and whilst there is in principle access to the case file in all Member States, there are variable rules on whether this is provided by the prosecuting authorities or upon request.
The general picture when a suspect is detained is that no specific provision is made for access to the case file at the first determination by a court, which is covered by the general rules applicable to the whole pre-trial phase. The Directive mentions in recital 30 that documents should be provided ‘in due time to allow the effective exercise of the right to challenge the lawfulness of the arrest or detention’, and that practical challenges, linked to the transfer of the (potentially large) police file to the court following arrest, may currently be diminishing the effectiveness of the initial challenge.
The survey recognised that legal rules provided a right of access to documents which are relevant to a detention decision, though the legislative drafting varied to some extent. The effectiveness of the approach of linking the right of access to the documents mentioned in a detention order is not yet demonstrated, but in a number of Member States, either in law or in practice, access even to these documents is restricted.
There is generally the ability to obtain a copy (sometimes electronically) of the file during the investigative stage – by and large, the survey suggests lawyers are able to consult and make copies of the file during the investigative stage (unless derogations are applied). Practices relating to the availability of the case file at prosecutors’ offices do, however, pose problems.
In general, lawyers were also able to make paper copies of the file for the client to keep, and in some cases electronic copies could be obtained pre-trial. However, there were possibilities to restrict this, and in one example, the right of consultation allowed only the taking of notes. Restrictions of this nature limit the ability of the defence to participate effectively in pre-trial proceedings.
The survey suggested that it was possible to challenge the refusal of access at the pre-trial stage. The practice of not issuing a formal decision when denying access historically is a problem in terms of judicial protection. In most Member States, there were separate provisions governing access to the full file in order to prepare for trial, and it appears that there is generally access to either a full paper copy or an electronic copy. There were some doubts as to unused materials not considered to fall within the scope of the case by prosecutors, which could assist the defence. Consultation of documents in prisons could pose practical problems for the preparation of the trial defence.
Read the full survey report here.
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