• The authority in charge of the investigation should be
required to include an inventory of the contents of the
case file, to make navigating a complex file easier for
the defence and other persons who have access to the
file.
b. Modalities of access
Even where the defence lawyer has access to the case file
and relevant case materials in advance of the pre-trial
detention hearing, the scope of access may be limited to
certain documents, or access may only have been granted
too late in the proceedings to enable the lawyer to effectively
challenge the legality of detention.
•
Administrative burdens: Some lawyers (for example, in
Romania) reported delaying tactics by law enforcement
officials, which are possible because the legislation
implementing the Access to Information Directive is too
vague.
• Lawyers should not be faced with bureaucratic hurdles
such as a formal request procedure to study the case
file, as is the case in Romania.
• Elimination of administrative burdens – a proof of
being the person’s lawyer should be enough.
• A prior phone call or an email from the lawyer should
be enough to access the case file.
•
Late access: Defence lawyers in most project partner
countries tend to receive the file or notice of the hearing
at a late stage in pre-trial proceedings. On average, a
defence lawyer in Italy and Romania has around 30
minutes to prepare for the initial judicial hearing to
detain, causing significant challenges to getting
acquainted with the facts of the case and to preparing
themselves and their clients adequately for the hearing.
• Strict statutory time frames in respect of access to the
case file should be set by the law.
22
•
Obtaining copies of the case materials: Lawyers in
Romania, for example, complained about difficulties in
obtaining their own paper copies of the case file to use
in consultation with their client. Photocopying the
documents was identified as a practical obstacle in some
Member States, including in Greece and Romania, where
despite the positive example of timeframes for access to
the case file, the defendant must bear the costs of all
copies. An obligation to cover this cost has a
discriminatory impact on defendants with restricted
financial means, particularly if photocopying of files is
excluded from the scope of legal aid.
• Consider alternatives to traditional photocopies, such
as taking photos with a phone, as proposed in
Romania. Access to the case file and making
photocopies (also for legal aid cases) should be free
of charge. The establishment of electronic case files
should be explored.
• Studying the case file should be possible during the
working hours of the police officer/prosecutor, based
on a prior phone/email from the lawyer.
• The main documents of the prosecutor’s file should
be at least be included in the notice to the lawyer
about hearings at which decisions about detention
are made.
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