The accused’s access to the case file during the enquiries phase, namely in order to challenge a court order maintaining his/her remand in custody
Confidentiality of legal proceedings
Access to the case file
Access to the courts
Guarantees of the defence
Principle of equality of arms
RULING Nº 121/97
19 of February of 1997
It is unconstitutional to interpret the provisions of the Code of Criminal Procedure in such a way as to deny accused persons and their defence counsel the right during the investigation to be informed of the contents of the file and therefore the right to appeal against the decision ordering or maintaining detention on remand. It is contrary to the guarantees of access to the law and to the courts and to the guarantees provided by criminal procedure, and above all to the principles of adversarial hearings and equality of arms, contained in Articles 20.1, 32.1 and 32.5 of the Constitution.
The applicant claimed, with reference to several principles of the Portuguese Constitution and the European Convention on Human Rights, that accused persons in criminal proceedings who are detained on remand, in addition to their right to be immediately and clearly informed of the reasons for their detention and their rights, also have the right - they themselves or their defence counsel - to be informed of the contents of the file. He thus questioned the constitutionality of the provisions under which (a) the rule that criminal proceedings must be conducted in public is not fully valid until the Public Prosecution Office has brought charges and (b) the file remains inaccessible to the defence during the first stage of the proceedings «fase de inquerito».
As regards access to the file, Portuguese legislation was therefore more restrictive than many other national criminal procedures in western Europe.
In the case in point, the Court did not deem it essential to assess whether the provisions were unconstitutional on the grounds that they violated Articles 5.1, 5.2 and 6 ECHR, since these international legal principles have been incorporated into several articles of the Portuguese Constitution. Accordingly, international case law on this matter, especially that of the European Commission of Human Rights and the European Court of Human Rights (see, for example, the judgment of 30 March 1989 in the case of Lamy v. Belgium) was only taken into consideration as an element in interpreting the applicable constitutional provisions.
Three judges issued a dissenting opinion.