Access to the Case Materials in Pre-Trial Stages : Critical Questions of Article 7 of Directive 2012/13/EU on the right to information in criminal proceedings

Abstract

The right of access to the case materials (Art. 7 of Directive 2012/13/EU) is crucial to enable an effective defence and ensure equality of arms in criminal proceedings. However, when it comes to the pre-trial stages of criminal proceedings, Art. 7 of Directive 2012/13/EU is not clear about the timing of access, the scope of access, and about the possible derogations from providing access to suspects and their counsel. This article outlines the questions that, in our opinion, should most urgently be posed to the CJEU concerning the interpretation of Art. 7 in the context of pre-trial proceedings, e.g.: What are the documents that are “essential for challenging effectively” the lawfulness of arrest and detention under Art. 7(1)? Do the grounds for derogation under Art. 7(4) apply to Art. 7(1)? How should the derogation grounds under Art. 7(4) be understood? Do Art. 7(2) and (3) apply at the pre-trial stages of the proceedings, and particularly to pre-trial investigations? If yes, what is the scope and manner of access to the case materials that should be provided at these stages? We argue that further interpretation from the CJEU is necessary to ensure greater uniformity and stronger protection of the right of access to the case materials across the EU Member States