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.   42