Hirsch Ballin amends regulations for criminal case files
In future, suspects who face trial will have a greater say in the composition of their case files. It will be laid down in law that the suspect or his lawyer may request the Public Prosecution Service to add information to the case file. This will be supervised by the examining magistrate.
This is evident from, among other things, a legislative proposal of Minister of Justice Hirsch Ballin that was submitted to the Lower House. The Minister wants to make the preparation of files in criminal cases as transparent as possible. The file must be complete, before the case comes up for trial. Especially where it concerns suspects who are not in pre-trial detention, the case file is sometimes complete only just before the summons. Minister Hirsch Ballin also wants to introduce a national standard to improve the preparation of case files in large-scale investigations, thereby making the case documents more accessible.
A carefully compiled and complete criminal file improves the efficiency of court procedures and offers possibilities for monitoring the criminal investigations of the police and judicial authorities. The contents of the case file are extremely important to the defence of the suspect and his influence on the progress of the investigation. Therefore, it is in his interest that all relevant case documents are added as soon as possible. The existing rules for the compilation of case documents are out-of-date and incomplete. The contents of case files are frequently discussed in court. This often involves requests for additions, usually in investigations in which full disclosure is at odds with the interests of the investigation.
The new regulation meets the objections in practice and offers more clarity. It prescribes, for instance, which documents the case file must contain, who will be responsible during the preliminary investigation for compiling the case file and what the rules are concerning the right of inspection and leaving out certain information in connection with the identity of informers. The aim is to determine as soon as possible – already during the preliminary investigation – what must be included in the file and what not.
This is also important in connection with the increasing use of crime scene reconstructions or simulations of facts using audio-visual aids. Parties to the proceedings must be informed about this quickly to be able to react in time. The legislative proposal also provides for a clear division of powers between the public prosecutor and the judge, especially the examining magistrate, who will be assigned a number of additional tasks.
The examining magistrate must, for instance, decide on objections of the defence against any failure of the public prosecutor to provide copies of case documents, and suspects may request the examining magistrate to set a time-limit if the public prosecutor takes too long to allow the suspect’s request for inspection of the case documents. The Public Prosecution Service has the right to temporarily limit the inspection of case documents by the suspect in the interest of the investigation. The suspect may object to this. At the moment this is handled by the court, but in future this will be handled by the examining magistrate.
The examining magistrate may also take a decision, if the public prosecutor and the suspect continue to disagree about the inclusion of case documents in the case file. When the new regulation has come into force, the public prosecutor may only refuse inspection on the basis of a written authorisation of the examining magistrate. The legislative proposal also takes the developments in the field of the so-called e-dossier into account. In future the police will draw up and send reports electronically and the Public Prosecution Service is now preparing for handling electronic case files.