2 January 2017


Access by the defense to case files declared secret


Having access to the materials of a case to which our client is a party is unquestionably important, including where a case has been declared secret and pre-trial detention has been ordered. Otherwise, the possibilities for defense against such a grave precautionary measure could be seriously undermined.


A number of courts have restricted access by the defense to case information and documents on the basis of rather weak arguments, despite the fact that access is essential to challenging pre-trial detention measures with minimum guarantees.


Organic Law 5/2015 of 27 April, which amended the Criminal Procedure Act and the Judiciary Act by transposing Directive 2010/64/EU of 20 October 2010, relative to the right to interpretation and translation in criminal proceedings and Directive 2012/13/EU of 22 May 2012, relative to the right to information in criminal proceedings, has consolidated the right of the defense to access case materials that are essential to challenging measures involving arrest or detention.


Article 7 of the Directive 2012/13/EU of the European Parliament and Commission of 22 May 2012 relative to the right to information in criminal proceedings, which was one of the reasons for the passage of Organic Law 5/2015, establishes the right of the lawyers of “suspects or accused persons” to access the materials of a case for them to be able to challenge the lawfulness of the arrest or detention.


Some provincial (appeals) courts are ruling on questions involving the reforms introduced in Organic Law 5/2015.


An example of this is ruling number 351/16 of the section 15 of the Madrid Provincial Court of 12 April.


The ruling states that: “To answer the questions raised here, it is important to remember that according to the second paragraph of section three of article 505 of the Criminal Procedure Act, which regulates the mandatory hearing that must necessarily be held prior to a decision on the personal situation of the detainee, unless the suspect is released without bond, the suspect’s attorney shall have access to the materials of the case that are essential to challenge the detention of the suspect or accused person. It is also important to remember that the final paragraph of article 302 of the same procedural law which regulates the secrecy of the proceedings excludes the contents of the previously mentioned second paragraph of article 505.3 from the restrictions imposed when the proceedings are declared secret, inasmuch as the right to access by the parties involved is concerned. Finally, it is worth noting that according to article 520.2 of the Criminal Procedure Act, the detainee must be informed immediately, in writing, in simple and comprehensible language and in a language that he understands of the crimes he is accused of committing and the reason for his detention, as well as his rights in this regard. According to part d), those rights include the right to access the materials of the case that are essential to challenge the legality of the detention or arrest.”


The ruling states below that: “As previously mentioned, in cases of pre-trial detention or imprisonment these access rights are regulated in article 520 of the Criminal procedure act and their scope is limited, pursuant to EU law, to those elements of the case that are essential to challenge the legality of the detention or imprisonment. The idea is that prior to an appeal being filed only that information which is essential to assess the legality of the detention or imprisonment should be provided.”


Finally, the ruling establishes that: “Consequently, the motion is granted: the failure to deliver to the suspect or his defence attorneys the materials of the case needed to challenge the pre-trial detention violates the legal provisions mentioned above and causes defencelessness by precluding the articulation of the challenge on the basis of sufficient information, thereby impairing its potential effectiveness.”


The aforementioned decision taken by the Provincial Court of Madrid is important because defense counsels are entitled to be granted access by Investigation Courts to the materials of the case they are dealing with-- including if the case has been declared secret--, which materials are essential to challenging the arrest or detention of their clients with full guarantees.



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