Inside Police Custody 2 exercise of the right to challenge the lawfulness of the arrest or detention’. The concept of documents that are ‘essential’ to challenging the lawfulness of arrest or detention is not defined, but Recital 30 suggests that it may include both documents and, where appropriate, photographs, audio and video recordings. Since, by virtue of Article 5(1)(c) of the ECHR, arrest for an offence requires ‘reasonable suspicion’ that the person has committed an offence, essential documents may include those documents, such as police reports or witness statements, which provided the foundation for the suspicion. Some of the countries in the study amended their legislation specifically to give effect to Article 7(1) of the Directive. This was the case in Lithuania and Spain, for example. In Slovenia, the law provides that suspects have the right to documents that are necessary to challenge the lawfulness of the detention, but only after the person has been detained for six hours. In Spain, the law was amended to give effect to Article 7(1), and it provides that the right of access cannot be limited in any circumstances. However, problems arose in practice because the law provided for a right of ‘access’ to ‘essential elements’ (rather than an obligation on the relevant authorities to make essential documents available), and ‘essential elements’ was interpreted restrictively. However, the Constitutional Court has held that relevant documents should be shown, or handed over, to the suspected or accused person. In addition, whilst the court held that ‘essential documents’ should be determined on a case-by-case basis, it gave examples of the types of documents which should be made available: for example, the report of the facts, where it includes accusations by a party that incriminate the arrested person, and documentation containing incriminating testimonies, as well as the content of the expert scientific reports that establish a link between the facts being investigated and the arrested person. The law in Romania, Austria and Hungary provides, in principle, that a suspected or accused person has a right of access to case materials throughout criminal proceedings, including during the investigative phase, but in all cases this is the subject of limitations which may mean that access to documents essential to challenging the arrest or detention is not available during the early stages of the criminal process. In Romania, the right of access is only applicable after a person becomes a defendant, and does not apply during police arrest. In Hungary, where the former version of the criminal procedure code was found to be in breach of the ECHR in this respect, under the revised code, where a prosecutor seeks pre-trial detention, a copy of the case files substantiating the application must be attached to it and must be provided to the accused and his or her lawyer. The position is similar in Poland. This does not go far enough to satisfy the requirements of Article 7(1) since a suspected person may have grounds to challenge their arrest or detention during the initial phase of detention, and before any such application is made by the prosecution. The general right of access to case material, including during the investigative phase, would appear to satisfy the requirements of the Directive, but it is subject to exceptions, which Article 7(1) does not permit. However, a point of good practice is that the law requires that a record be made of what case materials have been disclosed, and the time that access was permitted. In Austria, access can be refused in certain defined circumstances, but a blanket reference to the need to avoid prejudice to the investigation is not permitted. In Bulgaria, access to case materials is only permitted after the formal indictment, and even then, access can be refused on the basis that it may obstruct the investigation. It appears that this is also the case in respect of documents that are essential to challenging the lawfulness of the arrest or detention which, if it is the case, is contrary to the provisions of Article 7(1). Italy did not amend its law in order to transpose this aspect of the Directive, the view being taken that the law was already in compliance with the Directive. However, in practice, whilst access to case materials is generally provided in sufficient time to enable the exercise of defence rights, this is not always the case in respect of custodial interrogations and validation hearings. 39