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“ ... there is no rational justification for any prosecutorial limitation of the right to equality of arms in detention proceedings which result from denial of providing access to case files. ”

Access to files in pretrial detention proceedings awaiting a breakthrough date: A Polish Perspective

June 03 2014
Adam Bodnar
Piotr Kubaszewski
Network Partner:
Helsinki Foundation for Human Rights

2 June 2014 is the final date of the transposition period set for the Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (the “Directive”). The Directive aims to create minimum safeguards for protection of the rights of suspects or accused persons to information about their rights and charges filed against them. The date of 2 June 2014 is not only of technical significance. After that day, the legitimacy of further pre-trial detention may be challenged in a number of cases, on account of the obligation to provide defence lawyers with access to case files of pre-trial proceedings.

Under article 7 of the Directive, where a person is arrested or detained, the same person or their lawyer should be granted access to those documents related to the specific case (in the possession of a competent authority) which are essential to challenging effectively the lawfulness of the arrest or detention. All suspects, accused persons or their defence lawyers have the right of access to material evidence in the possession of competent authorities.

To safeguard the fairness of the proceedings and to prepare the defence, access to the said evidence should be granted in due time, that is early enough to allow the effective exercise of the detained person’s rights of the defence, but not later than upon the submission of the merits of the accusation to the judgment of a court. If the competent authorities come into possession of further material evidence, access to the same must also be granted in due time to allow for it to be considered.

1.0 Rewording of Article

The Directive further stipulates that access to certain materials may be refused if such access may lead to a serious threat to the life or the fundamental rights of other person or if such refusal is strictly necessary to safeguard an important public interest (for instance in cases where access could prejudice an ongoing investigation or seriously harm the national security of the Member State). This may not, however, prejudice the right to a fair trial. A decision to refuse access to case files should be taken by a judicial authority or be subject to judicial review.

The Directive is reflected in the new wording of article 156 § 5a of the Polish Code of Criminal Procedure [Kodeks postępowania karnego, k.p.k.], which will become law on 2 June 2014. The said article provides that “if a motion for the application or extension of pre-trial detention is filed in the course of pre-trial criminal proceedings, the suspect and their defence lawyer shall be immediately given access to those case files which discuss the evidence cited in the motion”. The amendment was Poland’s last-minute yet successful attempt to formally transpose the Directive. This, however, invites the question whether the formal transposition will have any impact on the judicial practice.

According to the extensive body of rulings of the European Court of Human Rights (cf., for example, Migoń v. Poland, application no. 24244/94, judgment of 25 June 2002, Chruściński v. Poland, application no. 22755/04, judgment of 6 November 2007), proceedings conducted to review the legality of detention should be of adversary nature and must always guarantee the equality of arms between the parties. This means, among other things, that the accused person and their defence lawyer must be given access to the files of pre-trial proceedings to the extent necessary for them to effectively challenge the reliability of evidence which constituted a basis for the application of this preventive measure. The habeas corpus procedure initiated in the course of pre-trial proceedings should adhere, as much as reasonably possible, to the same standards of fairness as those applying to judicial trial.

Denial of access to the case files which contain evidence justifying the need for pre-trial detention, which – under the new wording of the CCP article 156 § 5a – is to be only an exemption from the general disclosure rule, is incompatible with Article 5(4) of the European Convention on Human Rights. Accordingly, there is no rational justification for any prosecutorial limitation of the right to equality of arms in detention proceedings which result from denial of providing access to case files.

1.1 Disclosure of Case Files

In the context of the new version of art. 156 § 5a, after 2 June 2014 it will be impossible to apply pre-trial detention without disclosing case files to the party. If a time-limit for which pre-trial detention was applied (e.g. from 1 May 2014 to 31 July 2014) overlaps with the effective period of the new CCP article (which corresponds to the provisions of the Directive), then the manner of handling a proceeding on the application of pre-trial detention should comply with the safeguards laid down in the Directive. Accordingly, the court should not issue a decision on pre-trial detention for a period exceeding 2 June 2014 without considering the wording of the Directive and the resultant amendment of art. 156 § 5a of the CCP.

Considering the above, one may expect courts to reconsider all the cases which involve pre-trial detention extending beyond that date. In consequence, from 2 June 2014 onwards defence lawyers will be able to effectively request access to these case files which should be immediately made available to them. Defence attorneys will also be able to file motions for new decisions on pre-trial detention already after they read evidence material contained in the case files. Any opposite interpretation of the amended provision will be incoherent with the safeguards established under the Directive and the European Convention on Human Rights.

Authors: Adam Bodnar and Piotr Kubaszewski are lawyers at JUSTICIA's Polish Network partner, Helsinki Foundation for Human Rights.


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