Where’s my lawyer? Making legal assistance in pre-trial detention effective 3. Access to case file Limitations on the access to case file are contrary to the fundamental principle of equality of arms, “an inherent feature of a fair trial. It requires that each party be given a reasonable opportunity to present his case under conditions that do not place him at a disadvantage vis-à-vis his opponent.”70 Equality of arms requires “that a fair balance be struck between the parties, and applies to criminal and civil cases.”71 The CJEU has recognised the principle of equality of arms or procedural equality as falling within Article 47 of the Charter of Fundamental Rights of the European Union, as a component of the principle of effective judicial protection.72 Beyond the information about charges, lawyers need access to information on the case file as early as possible to start developing a defence strategy. This is important in order to challenge pre-trial detention, for example to show that it is not justified because the necessary evidence has already been gathered and that there would no longer be a possibility for the client to tamper with it; or, more generally, to question the existence of reasonable suspicion that the person committed the offence which is required to justify the pre-trial detention. • The decision on what parts of the case file are required to be disclosed to the defence should not be left up to the prosecutor alone, as there is a clear conflict of interest and risk of abuse of the possibility to restrict access. • Any legal restrictions to limit access to the case file should be formulated in concrete and clear terms. • If the prosecutor refuses to grant or limits access to the case file, he/she should be required to provide reasons for this which can be challenged before a more superior prosecutor or court. • Legislation should clearly specify the maximum number of days for which restriction to a case file may be ordered by the prosecutor. • Where access to the case file depends on prosecutorial discretion on a case-by-case basis, judicial remedies must be made available if the case file was not reviewed in time before a hearing, requiring the court for instance to provide the defence with additional time to review the materials. Positive development: Hungary a. Restricted access Despite the obligation for all EU Member States to implement into national law a provision on providing defendants with the necessary access to the case file in order to challenge their detention,73 this is far from being a reality in the project partner countries. • Discretion of prosecutors to refuse access to the case file: In Romania, for example, broad and vague legal provisions allow prosecutors to restrict defence access to the case file. Also, legal provisions guaranteeing access to the case file for an unrepresented defendant in pre-trial detention are lacking, which leaves these defendants without access to the file at all. Even for represented defendants, access to the case file will depend on the assertiveness of the defence. • Except in exceptional cases where restricted access is justified, access to the case file should be automatic, without having to request it from the prosecution, to enable a detained person to challenge effectively their detention. Proof of the lawyer being appointed by the detainee should be enough. 70 71 72 73 74 75 76 77 As stated in our 2016 report,74 in parts of Hungary outside of Budapest, prosecutors used to be able to decide which documents are essential for the defence to view, potentially censoring key documents. But in Budapest, access to the full case file was typically available, demonstrating that such selective access was not in conformity with the law and hindered the right to defence. The recently adopted Criminal Procedure Code (the New CCP)75 provides for full access to the case file as the rule, with possible restrictions imposed on a caseby-case basis by the prosecution or the investigating authority, and the introduction by default of access to all the case materials during the investigation.76 Additionally, the new law introduces the concept of ‘case material,’ which includes not only documents but also ‘other evidence.’77 Further, it provides for a formal decision to be delivered about the restriction of the access or the manner of access, and a remedy may be sought against this decision. European Court of Human Rights, Öcalan v. Turkey [GC], Judgment of 12 May 2005, App. no. 46221/99, para. 140; Foucher v. France, Judgment of 18 March 1997, App. no. 22209/93, para. 34; Bulut v. Austria, Judgment of 22 February 1996, App. no. 17358/90; Faig Mammadov v. Azerbaijan, Judgment of 26 January 2017, App. no. 60802/09, para. 19. European court of Human Rights, Guide on Article 6 of the European Convention on Human Rights, Right to a fair trial (criminal limb), updated on 31 August 2019, p. 28. Court of Justice of the European Union, Judgment of 17 July 2014, Sánchez Morcillo and Abril García, C‑169/14, EU:C:2014:2099, para. 48. Article 7(1), Right to Information Directive. Fair Trials, 2016, A measure of last resort?, p. 15, para. 47. Act XC of 2017 on the Code of Criminal Procedure, entered into force on 1 July 2018. Article 100, the New CCP and explanatory memorandum. Article 100 (2), the New CCP. 21