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NEWS

Fair Trials intervenes over access to case file

editor - February 26, 2015

Swedish flagLawyers acting in the criminal prosecution against Julian Assange in Sweden have today submitted an independent opinion prepared by Fair Trials, highlighting the lack of clarity surrounding the provision of EU law at issue and the need for guidance from the Court of Justice of the EU.

The Right to Information Directive, which was adopted in May 2012, and whose implementation date passed in June 2014, is a key piece of EU legislation that has the potential to be an effective tool for protecting basic fair trial rights. It essentially requires that all suspects and accused persons receive basic information about their rights, information about reasons for arrest and charges, and, importantly, access to the case materials in order to prepare a defence.  This is the second of three directives adopted further to the 2009 Roadmap for strengthening procedural rights, the EU’s ambitious project to strengthen mutual trust between Member States’ judicial authorities by protecting criminal defence rights through EU law.

Under Article 7(1) of the Directive, Member States are required to ‘make available’ to a person deprived of liberty those documents which are essential for contesting the lawfulness of detention. This provision (though it may do other things too) is primarily intended to tackle the long-standing problem of courts detaining people presumed innocent on the grounds of there being a strong case against them, without making available the evidence need to challenge that finding. This is contrary to well-established European Convention on Human Rights principles, but these have not always been respected in practice (see this report on the situation in Poland prior to the Directive).

But it’s one thing for a law to be passed, and another to see how the law is implemented. In practice, as our opinion discussed, different Member States have read this provision very differently, allowing different levels of access to the file with a range of practical rules about making paper and electronic copies, taking notes etc., raising a question as to what exactly is required by the provision. As they concern the right to liberty of thousands across the EU, the question marks are important.

It is hoped that this current case will help to clarify the reach of Article 7(1) of the Directive. This is only a ‘minimum rule’, which respects the different approaches to criminal justice in the EU. But we believe that it must, at least, require that the person concerned and their lawyer should have an effective opportunity to consider and discuss the relevant documents and make submissions to the court on that basis in order to challenge detention effectively. Ultimately, it falls to the Court of Justice of the EU (CJEU) to give the needed interpretation.

Fair Trials, along with LEAP (a network of 130 criminal justice experts from all 28 Member States of the European Union), has long been focused on protection of defence rights within the European Union, and actively supported the EU institutions in delivering the defence rights measures adopted under the EU Roadmap. But, as this case shows, the key lies in the way the provisions are applied at the national level and the questions arise only if lawyers make use of them in national cases.

At Fair Trials, we are committed to making sure these new laws are used in practice. LEAP members are helping us to make sure that lawyers across Europe know about this new EU law. They are helping us to provide training, both in person and online, and are working with us to develop tools that lawyers can use to persuade local judges to take notice and refer questions to the CJEU when needed. This is a key part of LEAP’s strategy, discussed at its Annual Conference on 6-7 February 2015. With more and more focus being placed on the Roadmap Directives, and this specific provision in particular, more questions like the one in this case are sure to arise before long.

You can download the opinion here.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on 020 7822 2370 or 07950 849 851.

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If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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