Access to the Case Materials in Pre-Trial Stages

• Date: 03 May 2019
• Year: 2019
• Author: Anna Pivaty LL.M.,Dr. Anneli Soo
• Pages: 60
• DOI: https://doi.org/10.30709/eucrim-2019-001

I. Introduction: The Right of Early Access to the Case Materials in EU Law

In EU law the right of access to the case materials in criminal proceedings arises from Art. 7 of Directive 2012/13/EU on the right to information in criminal proceedings.¹ Two elements of the right are distinguished:

• The right of access upon arrest or detention (Art. 7(1));²

• General right to access the case materials (Art. 7(2) and (3)).³

• Art. 7(4) provides the grounds for derogation from the right.⁴

Directive 2012/13/EU was adopted on 22 May 2012 and had to be transposed by 2 June 2014. The CJEU has addressed interpretation of its Art. 7 only once so far.⁵

Art. 7 is the only article in Directive 2012/13/EU, which focuses on the right of access to the case materials. The central question is whether Art. 7 should be applied differently to the pre-trial proceedings as compared to the trial. As concerns Art. 7(1), obviously, it applies to both stages: someone can be arrested or detained both before and after the case reaches the trial. However, it is unclear from the wording of Art. 7(2) and (3) whether the general right of access to the case materials (unrelated to arrest or detention) also applies to the pre-trial procedural stages (such as pre-trial suspect interrogations), and to what extent. In Kolev, the CJEU did not clarify these issues either, as this case focuses on the latest, not on the earliest point of the proceedings when access should be granted.⁶ There are also other ambiguities of wording of Art. 7 in the context of pre-trial proceedings. For instance, the formulation of derogations in Art. 7(4) allows for some variance in interpretation depending on the national specifics, especially the part related to the prejudice to an ongoing investigation. These problems are discussed in detail below, as they form a basis for making an argument for requesting preliminary references to the CJEU.

II. The Right of Access to the Case Materials upon Challenge of Arrest or Detention: Emerging Questions

Although it is clear from Art. 7(1) that it applies at any stage of criminal proceedings upon arrest or detention, two questions remain open.

First, which documents are essential for challenging effectively the lawfulness of the arrest or detention? According to the ECtHR, reasonable suspicion is a condition sine qua non for the lawfulness of the arrest or detention, but with the lapse of time it is not enough to justify continued detention.⁷ With the lapse of time other valid grounds must exist to justify the deprivation of liberty, such as the risk of absconding or tampering with evidence.⁸ When it comes to challenging the lawfulness of the detention, the ECtHR requires that “the detainee must be given an opportunity effectively to challenge the basis of the allegations against him [...]. This may require the court to hear witnesses whose testimony appears prima facie to have a material bearing on the continuing lawfulness of the detention [...]. It may also require that the detainee or his representative be given access to documents in the case file which form the basis of the prosecution case against him […].”⁹

Here, access to the case materials provides the detainee with information about the evidence, which supports the law enforcement agents’ claim about the existence of reasonable suspicion that he has committed an offence, and (if applicable) about the additional ground(s) for continued detention. Based on this information, the detainee can challenge these claims, and submit evidence if necessary. The explanatory memorandum of the Commission proposal on the Directive calls it a “limited access to the case-file” which “ensures the fairness of pre-trial proceedings concerning the lawfulness of arrest and detention.”¹⁰ In this context, a number of questions arise: To what extent is the access limited? Does it cover all evidence the prosecution has against the suspect? If not, who decides, and based on what criteria, which evidence should be revealed to the defence, given that the lawyer – who would be best suited to assess which evidence is essential for challenging the arrest or detention effectively – is not given access to the complete case materials? And how, if at all, could the lawyer or the suspect control whether all such evidence has been disclosed? Does “limited access to the case-file” also cover exculpatory evidence in the possession of the prosecution?¹¹ These questions are very closely related to the next question concerning the possible derogations of Art. 7(1).

When it comes to determining which evidence is essential for challenging the arrest or detention, evidently, national peculiarities must be considered when making individual decisions about the scope of access to case materials, because the laws of Member States may provide for different grounds for continued detention (as long as they are in line with Art. 5(3) ECHR and the respective case law).¹² However, the question is to what extent should national differences be taken into account? What if, for instance, national law defines the moment from which ‘reasonable suspicion’ exists (and the criminal proceedings begin) differently than the respective ECtHR case law?¹³ In Bulgaria for instance, the first 24 hours of police detention, or police arrest, of someone suspected of having committed a crime are not considered part of the criminal proceedings,¹⁴ and therefore detention orders (which do not contain information about the factual grounds for arrest) might be handed out to suspects hours after the actual detention. Is this situation compatible with Art. 7(1)? Nevertheless, the questions we raised above about the interpretation of Art. 7(1) are more general, and therefore they need fundamental answers given by the CJEU. In addition, as we will demonstrate immediately below, the questions on the interpretation of Art. 7(1) and (4) are interrelated, and therefore must be analysed jointly.

This leads us to the second question, i.e. does Art. 7(4) apply in cases where access to the case materials must be granted in accordance with Art. 7(1), i.e. can Art. 7(1) be derogated by Art. 7(4)? One might consider several arguments against and for the derogation. On the one hand, literal interpretation of Art. 7(1) and (4), which is one of the dominant interpretation techniques of the CJEU,¹⁵ seems to suggest that Art. 7(1) cannot be derogated by Art. 7(4). As Art. 7(4) makes reference only to Art. 7(2) and (3), it implies that it does not apply to any other paragraphs of Art. 7. This is also backed by historic interpretation (even though the CJEU does not often rely on it), because the explanatory memorandum of the Commission proposal to the Directive makes reference to possible derogations from access to the case materials only in relation to access for the preparation of the trial.¹⁶ Also, this viewpoint is also shared by legal academic literature¹⁷. On the other hand, contextual interpretation (also often used by the CJEU)¹⁸ suggests that Art. 7(1) may be derogated on the grounds provided in Art. 7(4). More precisely, recital 42 of Directive 2012/13/EU states that “[t]he provisions of this Directive that correspond to rights guaranteed by the ECHR should be interpreted and implemented consistently with those rights, as interpreted in the case-law of the European Court of Human Rights”. Furthermore, according to recital 32 “[r]estrictions on such access should be interpreted strictly and in accordance with the principle of the right to a fair trial under the ECHR and as interpreted by the case-law of the European Court of Human Rights.” According to the ECtHR, the right of access to the case materials upon arrest or detention can be restricted if it is strictly necessary, for example to protect the safety and security of third parties (witnesses or victims).¹⁹ In any case, the contextual interpretation relies on recitals 32 and 42 of the Directive, as these recitals – read in conjunction with Art. 7(1) – limit the right provided in this paragraph.

Because CJEU case law emphasises that recitals should not limit or contradict the rights stipulated in the actual provisions of a directive,²⁰ it may be argued that contextual interpretation is not appropriate to solve the given interpretation question. If the outcome of literal interpretation is however that both lawyers and suspects (as the holders of the rights) should be granted access to all materials of the case that are essential to challenge the arrest or detention, this inevitably raises the question on how to protect important values, such as privacy or personal safety? For instance, what if there is a real risk that disclosing the name(s) or whereabouts of (a) certain witness(es), or the (full) content of their statements to the suspect, might cause an attempt on the part of the suspect to influence their testimony and/or threaten their privacy or safety? This question is definitely worth raising with the CJEU. Here, an additional question to be addressed is whether procedures in some Member States enabling lawyers to see the materials but not to share them with their clients are compatible with Art. 7(1).²¹

Additionally, the timing of disclosure might also raise some issues. According to recital 30, the necessary documents must be made available to the defence “at the latest before a competent judicial authority is called to...