a. Starting point: Article 7(1) is subject to no derogation The first point to underline is that Article 7(1) is subject to no derogation. Article 7(4) provides grounds for restricting access to material evidence, but states specifically that this applies only as a derogation to Article 7(2) and (3). Those provisions, discussed further below, relate to the disclosure of material evidence beyond that which is necessary for challenging detention and are themselves expressed as being ‘without prejudice to [Article 7(1)]’. Article 7(1) knows no derogation. This is consistent with ECtHR case-law on Article 5(4), which has recognised that even if evidence is confidential for national security reasons, the protection of that material cannot come at the expense of substantial restrictions on the rights of defence and the relevant evidence will have to be disclosed, perhaps with allowances made for its confidential nature.60 b. Challenging a legal restriction upon access Suppose you are dealing with a legislative measure which enables the prosecutor to restrict access to the case file at the pre-trial stage. Previous domestic case-law recognises this as permissible if there are sufficient grounds. What to do?  Select your forum (this might be: (i) a judicial challenge / appeal against a refused request to the prosecutor for disclosure; (ii) a request to / recourse before a pre-trial judge; or (iii) simply a request made to the pre-trial detention judge).  Argue: Article 7(1) undoubtedly reproduces the standard of Article 5(4) ECHR, which has been interpreted by a clear line of case-law as requiring access to documents necessary for challenging detention. Article 7(1) has direct effect, and is not subject to any derogation. There cannot, accordingly, be any question of restricting access to the key documents which are material to the detention decision. To the extent that the prosecution seek to rely upon powers available under national law the application of which would lead to a restriction of Article 7(1) rights, the relevant provisions of national law must be set aside and access must be provided. If the provisions are discretionary, Article 7(1) reduces that discretion to zero. c. Challenging a ‘prosecutor decides’ restriction Consider the problem of a more practical nature, e.g. some evidence is disclosed to you by the prosecutor to substantiate points made in the request for pre-trial detention, but there may be other information in the file which is relevant. What to do?  Select your forum (this might be: (i) a judicial challenge / appeal against a refused request to the prosecutor for disclosure; (ii) a request to / recourse before a pre-trial judge; or (iii) simply a request made to the pre-trial detention judge).  Argue: Article 7(1) has direct effect and requires access to documents which are necessary for challenging detention effectively. The purpose of the 60 Case of Dochnal v. Poland, App. no. 31622/07 (Judgment of 18 September 2012), paragraph 87. 39