Inside Police Custody 2
The most important aspect of the Article 7 rights of access to case documents and materials during the
period that a person is under arrest or in initial detention is the right under Article 7(1) to documents
which are essential to challenging that arrest or detention. Such documents may provide the basis for
demonstrating that the arrest or detention is unlawful and that the suspected or accused person should
be released. The Directive does not provide for an exception to the right of access under Article 7(1), and
since the obligation is placed on member states to ensure that relevant documents are made available to
arrested persons or their lawyers, it should not depend on the arrested person challenging the legality of
their arrest or detention. Indeed, a person who is arrested or detained may not know that there is a basis
for challenging the legality of their arrest or detention unless that are given access to such documents.
Whilst a number of countries have legislated to provide for a right of access, this has often been done in
such a way as to limit the obligation on relevant authorities to disclose such documents. In Romania and
Bulgaria, the right of access does not apply during the initial period of police detention, and in Hungary
relevant documents are only disclosed if and when a prosecutor seeks pre-trial detention. In many of
the countries, access to relevant documents is only to be provided if the arrested or detained person
makes an application, whereas the wording of Article 7(1) clearly implies that the relevant authorities must
routinely make such documents available. It is also apparent that there is some lack of clarity, or even
confusion, about the meaning of ‘essential’ documents, and what is entailed by the requirement that they
be made ‘available’. In Spain, this was resolved by the Constitutional Court which, whilst holding that
determination of which documents are essential is case-specific, articulated the types of documents that
may be ‘essential’, and held that such documents must be shown or handed over to the arrested person or
their lawyer. This was an important clarification, and one which the relevant authorities of other countries
may wish to take notice of.
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