Obstacles in access to pre-trial investigation files

Increasingly more people address the Foundation claiming they have a problem with accessing files from pre-trial investigation, which contain evidence in support of a motion to impose pre-trial detention.

The obstacles encountered by suspects and their counsel in their efforts to have the files disclosed may lead to a violation of the equality of arms principle and the principle of adversarial nature of criminal proceeding. The HFHR requested the Prosecutor General to approach this problem and examine whether a denial of access to case files may result in abuses and disproportionate interference with the rights of suspects.

The prosecutor may deny access to case files in their parts discussing evidence referred to in a motion to order or extend pre-trial detention on the basis of an open list of grounds for denial, citing, for instance, a danger of loss of life or health of the victim, a risk of loss or destruction of evidence or furnishing false evidence or a risk of revealing details of ongoing police investigation. The list of reasons for denial was included in the Code of Criminal Procedure in the aftermath of the Constitutional Tribunal’s judgment of July 2009. The Tribunal found then-applicable provisions on disclosure of pre-trial investigation files unconstitutional as they allowed for an arbitrary interpretation of circumstances for disclosure materials in support of a motion for pre-trial detention. The Foundation expressed concern that the new list did not contribute, in practice, to improving the situation of suspects.

The European Court of Human Rights has repeatedly emphasised that providing suspects and their counsel with access to at least some of pre-trial investigation files constitutes an element of the procedure for a fair review of the application of pre-trial detention. According to the ECtHR, a suspect or their counsel should have access to information which is important for assessing the reasonableness and legality of pre-trial detention.

The Foundation referred to the most recent draft amendment to the Code of Criminal Procedure prepared by the Criminal Law Codification Commission. In its part regarding access to case files, the Commission’s proposal complies with a standard guaranteed under both the Polish Constitution and the European Convention on Human Rights. The bill guarantees access to pre-trial investigation files in their part comprising evidence referred to in the motion to order or extend pre-trial detention.