2 January 2017
There is no doubt that access to court documents in any case in which our client is under investigation is of the utmost importance, even in cases declared secret in which pre-trial detention has been ordered, as otherwise our chances of defending ourselves against such a serious precautionary measure could be severely reduced.
Some courts, on the basis of not very solid arguments, have imposed restrictions on access to information and documentation in a case by the defence, despite the fact that it is essential to be able to challenge the pre-trial detention measure with minimum guarantees.
Organic Law 5/2015 of 27 April 2015, which amends the Criminal Procedure Act and the Organic Law of the Judiciary to transpose Directive 2010/64/EU of 20 October 2010 on the right to interpretation and translation in criminal proceedings and Directive 2012/13/EU of 22 May 2012 on the right to information in criminal proceedings, has consolidated the right of the lawyer of the person under investigation to have access to the elements of the proceedings that are essential to challenge the measure of deprivation of liberty.
Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings, which partially gives rise to the aforementioned O.L. 5/2015, proclaims in its art. 7 the right of access to the materials of the file by the lawyer of the ‘accused or suspected’ person in order to challenge the legality of the detention or deprivation of liberty.
There are already some Provincial Court rulings in this regard, which have ruled on the reform introduced by Organic Law 5/2015.
In this regard, it is important to highlight Order 351/16 of the Provincial Court of Madrid, 15th Section, of 12 April, in which it states that:
‘The resolution of the question posed requires us to remember that art. 505 of the LECrim, which regulates the judicial hearing prior to deciding on the personal situation of the detainee, […] the lawyer of the investigated or accused person will, in any case, have access to the elements of the proceedings that are essential to challenge the deprivation of liberty of the investigated or accused person. We must also remember that Article 302 of the same procedural law, when regulating the declaration of secrecy of the proceedings, in its last paragraph leaves out of the restrictions derived from this declaration on the right of access to the parties involved, the provisions of the aforementioned second paragraph of Article 505.3, obliges all detainees or prisoners to be informed in writing, in simple and accessible language, in a language they understand and immediately, of the facts attributed to them and the reasons for their deprivation of liberty, as well as of their rights, including, according to section d), the right of access to the elements of the proceedings that are essential to challenge the legality of the detention or deprivation of liberty’.
The Order goes on to state that: ‘As has been anticipated, in cases of detainees or persons deprived of liberty, the right of access has been included in Article 520 of the Criminal Procedure Act and its scope is limited, as required by European regulations, to those elements of the proceedings that are essential to challenge the legality of the detention or deprivation of liberty. It is a question of providing, prior to the lodging of the appeal, only that information which is essential for it to be possible to assess the legality of the detention or deprivation of liberty’.
Finally, it states: ‘Consequently, the plea must be upheld: the failure to provide the appellant or his defence with the documents in the case necessary to challenge the deprivation of liberty infringes the abovementioned legal provisions and renders him defenceless by preventing him from bringing his challenge with sufficient information and undermining its potential effectiveness.’
The aforementioned Order of the Madrid Public Prosecutor’s Office is important in that defence lawyers should bear in mind that they can ask the investigating court to allow them access to the case, even if it has been declared secret, in order to know the elements of the proceedings that are essential to challenge the detention or deprivation of liberty of their client with full guarantees.
