When can I access the criminal file?

When can I access the criminal file?

"Someone lodged a complaint against me. Before my first hearing with the Public Prosecutor's Office, I asked to see the file, but I was refused! Who can have access to this famous file and when?

Alexis, Bellevue

In criminal proceedings, access to the case file is an essential component of the right to be heard, enshrined in article 29 of the Federal Constitution and in the Swiss Code of Criminal Procedure (CCP). Article 107 of the Code provides that a party has the right to consult the case file. The constitutional right to put forward one's arguments presupposes prior knowledge of the material before the authority.

However, only the "parties" within the meaning of art. 104 of the Code of Criminal Procedure are entitled to consult the file of criminal proceedings, i.e. the accused, the complainant and the public prosecutor. Other participants may, however, be granted a right of access (full or partial) to the file to the extent necessary to safeguard their interests if their rights are directly, immediately or personally affected: these are the injured party, the whistleblower, the witness, the person called upon to provide information, the expert or the third party (art. 105 CPP).

With regard to when the file may be consulted, art. 101 of the Code of Criminal Procedure provides that the parties may consult the file of pending criminal proceedings no later than after the first hearing of the accused and the taking of the main evidence by the Public Prosecutor's Office. The first hearing of the accused is taken to mean the first hearing conducted by the Public Prosecutor's Office or by the police at the latter's request. As for the concept of taking the main evidence, this is a legal concept that must be interpreted on a case-by-case basis but restrictively so that the parties can have access to the case file as quickly as possible. Primary evidence is evidence that is essential to the search for the material truth at the early stages of the investigation. This includes the hearing of the defendant(s) and, where applicable, their confrontation, the confrontation between the defendant and the plaintiff or the hearing of the main witnesses.

In your case, as the accused, you are a party to the proceedings and therefore have a right of access to the file. However, before your first hearing before the Public Prosecutor's Office, you are not yet able to consult this file. The Public Prosecutor's Office has rightly refused you access to the file prior to the hearing. However, it is important to bear in mind that decisions refusing or granting access to the file are subject to appeal, in accordance with articles 393 and 394 of the Code of Criminal Procedure.