Access to files as an injured party - principles of the Code of Criminal Procedure
Section 406 e (1) of the Code of Criminal Procedure stipulates that not only the accused but also injured parties have the right to inspect files. However, this right is not an obligation of the public prosecutor's office or the court. Access to files can be denied under certain circumstances.
Protection of interests - access to files in criminal proceedings
Anyone who commits a criminal offense generally harms others. These injured parties, regardless of whether they are private individuals or companies, whether the damage is immaterial or material, have the right to protect their interests in the best possible way. In many cases, this is the only way to ensure that the full extent of the disadvantage suffered can be recorded. However, the statutory protective rights of the offender must also be taken into account. For this reason, both interests are weighed against each other when the injured parties themselves or their legal representatives request access to the files.
Presentation of the interest and disclosure of the criminal files
In principle, only those who have a genuinely legitimate interest in the content of the file, i.e. the status of the investigation, the allegations made and the evidence available, will be granted access to the file. These reasons must be stated when requesting access to the files. For example, companies that have been deprived of large sums of money through manipulation by the accused may be entitled to do so. In the case of private individuals, all those who have been injured or materially damaged by the offense have the right to inspect the files. The right naturally also applies to the lawyers of the companies or private individuals who request access to the files on behalf of their clients.
One possible reason would be, for example, that you want to claim compensation from the perpetrator's insurance company.
The competent authority at this point in time - the public prosecutor's office until the investigation has been completed, and the court thereafter - decides according to the circumstances and at its due discretion whether the file will be made available for inspection in general and in whole or in part. A refusal is certainly possible if the interests of the accused or other persons involved in the proceedings prevail. This is explicitly stated in Section 406 e (2) of the Code of Criminal Procedure.
However, in practice, access to files is only denied in exceptional cases. This may be the case, for example, if the investigation cannot rule out the possibility that the injured parties did not act in accordance with the law.
Right to be heard of the accused
It is also conceivable that files will only be released once the accused has been granted the right to be heard. The fundamental rights of a potential offender must be protected in the same way as those of the injured parties. If his personal rights would be significantly impaired by the release of the files, he is entitled to a fair hearing. The Federal Constitutional Court has made this decision to ensure that all citizens are treated equally. The defendant himself can comment on the release of the files or have his objections raised by his lawyer.
Legal consequences for stakeholders
The reasons why actually or allegedly injured parties want to inspect files are not always really honorable. It is quite possible that people who later appear as witnesses may wish to gain knowledge of the facts of the case. In this case, however, access to the files would possibly impair objectivity or even pave the way for collusion with other witnesses. This could be the case, for example, in order to conceal connivance or complicity or to achieve a higher sentence for the accused by deliberately making false statements for personal reasons.
To ensure that such a procedure can be ruled out, both the accused and their legal representation can apply at an early stage for access to the files to be granted only after a fair hearing. It makes sense to make such an application at the same time as the notice of appointment, i.e. when lawyers apply to the court as defense counsel. Defendants themselves can also make this request if they wish to waive their right to a defense lawyer. However, it makes more sense to have such submissions to the court made by lawyers so that all aspects are taken into account.
It is therefore advisable for the injured party's representative to provide requests for access to the files with a cogent justification as to why this access is essential. Such a procedure can speed up the inspection of files, because the time-consuming examination and weighing of interests by the public prosecutor's office or the court becomes simpler and shorter.
The Federal Constitutional Court also commented on this in detail in its 2005 ruling.
Victims who request access to the file themselves should also take this into account and remember that, unlike lawyers, they will not be sent a paper-based file. They must inspect it in court and can make copies there if necessary. If a lawyer is instructed to request the file, both the injured party and the accused have the opportunity to have the relevant results of the investigation assessed immediately with the necessary specialist knowledge.
