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Inspection of files in criminal proceedings

You have the right to inspect files in criminal or administrative proceedings. This only applies if you belong to the entitled group of persons - for example, as a defendant. This right serves the right to a fair trial and is intended to create "equality of arms" in the citizen-state relationship. In this way, you receive information about the state of knowledge of the authorities. Therefore, you should not testify to the police or the public prosecutor's office before you have had access to the file. In addition, you can see from the file how the authority assesses your case and on what they base their argumentation. This is the only way you can avoid surprising decisions and prepare for your proceedings. We support you in requesting comprehensive access to the file.

 

Inspection of files in criminal proceedings: Who may inspect the files

In criminal proceedings, the parties concerned are given the legal right to inspect the files. This primarily includes the defendants. However, it is also open to joint plaintiffs or the representatives of joint plaintiffs to demand inspection of the files in order to assess the legal situation. The accused are granted access to the criminal files in order to comply with Article 6 (3) of the European Commission on Human Rights. This article grants every accused person in a criminal trial the right to a fair trial.

Section 147 of the Code of Criminal Procedure is derived from Art. 6 para. 3 of the ECHR. The right to inspect files, which is laid down there, is intended to ensure equal opportunities; every accused person should know in all details what he or she is accused of and how this accusation came about.

 

Inspection of files in criminal proceedings: Reasons

The inspection of files is indispensable for defence lawyers in criminal proceedings as well as for representatives of joint plaintiffs. Without precise knowledge of the factual and legal situation, the accusation on which the penalty order is based cannot be reviewed and certainly not assessed.

The accused themselves naturally see the incident differently than witnesses or the police. And also in the statements of the witnesses, the recording of the incident and the questioning of the accused by the police, deviating descriptions are quite normal. There is by no means always bad faith behind it, although this cannot be ruled out either. In order to get a comprehensive picture of the big picture, to crystallise facts and to uncover contradictions, it is very important for the lawyer to inspect the files.

 

Who gets access to the files?

The legislator has precisely defined which group of persons has a right to inspect files in criminal proceedings.

 

Inspection of files by the accused

The right of the accused person or persons, insofar as they are not represented by a defence lawyer, is laid down in section 147(4). It states that accused persons are entitled to inspect files and to view officially kept evidence. This must be done under supervision; the files are not handed over to the accused for inspection. However, restrictions apply here: If the accused could gain knowledge through the inspection of files that would impair the investigation or interests of third parties worthy of protection, the inspection of files may be refused.

Accused persons may feel this to be unfair, but the restriction is irrelevant to the criminal proceedings themselves. As a rule, the possibility to inspect the file is of little use to an accused who is not professionally experienced. He usually cannot assess the legal situation and interpret protocols contained in the file accordingly. Since a public defender of rights is appointed in the course of the proceedings - or, in the case of a so-called "necessary defence", a public defender of rights is appointed - the public defender of rights can and will take over the necessary inspection of the files.

Anyone who would like to know more information about the offence with which he or she is charged is generally better advised to request a lawyer to inspect the files. In particular, if there is a suspicion that the offence is at least partially true, a lawyer should definitely be commissioned to inspect the files. This can result in a professional assessment of whether the penalty order should be accepted or whether, after an objection against it, the sentence should be passed in a main hearing, since a more favourable sentence can then be expected.

 

Inspection of files by the lawyer

Already at an early stage of the investigation, but also and especially after the existence of a penalty order, the lawyers instructed by the accused have the right to inspect the files. This follows from section 147 (1) of the Code of Criminal Procedure; the following paragraphs determine which conditions may apply in individual cases.

Unlike the accused, lawyers do not have to limit themselves to inspecting the file in court. They are handed the file, and usually have three days to assess the state of affairs, the witness statements, the allegations of the offence and the objections of the joint plaintiff. This gives lawyers enough time to make copies of relevant documents and discuss them in detail with their clients.

Restrictions may also apply to the inspection of files by the lawyer. However, inspection of expert opinions and minutes of judicial acts at which the presence of a lawyer would have been admissible may not be denied.

 

Inspection of files in criminal proceedings: Development of the defence strategy

The purpose of an inspection of files is to develop a defence strategy for proceedings that are imminent or have already been initiated by the penalty order. However, since the proceedings can already be set in the wrong direction for the accused during the first interrogation by the police, it is important to hire a lawyer quickly.

 

Summons for questioning by the police

At this point at the latest, you as the accused should know that you do not have to give any information on the matter and that you should not give any at first. This legal instruction by the arresting police officers does not necessarily always take place within the required framework. What you can be asked to provide is information about your person. You do not have to answer any other questions. However, if you would like to make direct statements on the matter, we recommend a non-binding conversation with our law firm. We can first give you general advice. Once we have inspected the files, we will discuss whether and to what extent it makes sense to make a statement about the facts of the case.

Please also do not disclose further information about the facts of the case in an informal conversation with police officers. Even if you do not sign a formal interrogation protocol after such a conversation, it cannot be ruled out that your statements made in the conversation will be referred to elsewhere (e.g. on the back of the summons to the interrogation, a note attached to the file or the back of the interrogation protocol). Even general remarks simply said in a seemingly non-committal conversation can have a detrimental effect on you.

 

What should I do if I receive a penalty order?

Once the investigations - from the police's and the public prosecutor's point of view - have been completed, a penalty order will be issued. This will be sent to you by registered mail with a delivery note. It does not pay to refuse to accept it, even if this is propagated in certain internet groups. From a legal point of view, the respective document from a court is nevertheless considered to have been served. This is stipulated in § 179 ZPO. It is better to accept the penalty order and contact us quickly. Only when we - and you - know the exact charge can we proceed in a targeted manner and react accordingly.

Tip: Remember that the time limit for lodging an appeal begins when you receive the penalty order. It is only two weeks from the date of service. The objection must be received by the court within this period. Therefore, call us immediately after receiving the penalty order so that we can take further steps for you.

 

Inspection of files in criminal proceedings: Expiry of deadline

Even if the penalty order is forwarded in good time, it is not always possible for lawyers to obtain access to the files within the relatively short time limit. Often the public prosecutor's office or the criminal judge need the files to prepare for the trial, the defence lawyer of another party to the offence had given priority to requesting access to the files, or the lawyer of the joint plaintiffs was also earlier with his request. However, as long as the files have not been inspected, the facts of the case cannot be assessed and the further procedure cannot be structured.

Therefore, in such cases, we file an objection to the penalty order purely as a precaution. If, after inspecting the files, it turns out that it will be more reasonable to accept the penalty order, we can withdraw this objection at any time. The penalty order will then become final. The sentence imposed - either a fine or imprisonment - must be served. As a rule, however, the court or the state treasury issues separate summonses for this. If no appeal is lodged, the penalty order becomes final, even if there would have been a legitimate chance to eliminate the offence or at least to minimise the penalty imposed.

 

Inspection of files in criminal proceedings: for joint plaintiffs and representatives

If someone has been seriously injured by the crime, this person has the right to appear as a joint plaintiff. This does not necessarily mean that serious crimes have been committed. Even an accident that was the fault of the person who caused the injury can result in a penalty order being issued against the person who caused the injury, and the other party can attend the criminal proceedings and contribute to the outcome of the trial.

For this group of persons, the right to inspect files arises from section 406 e of the Code of Criminal Procedure. The fact that the outcome of the criminal proceedings is not only important for the victims in terms of criminal law, but also in terms of civil law, makes file inspection particularly important. Claims for damages may depend on the guilty verdict, such as insurance benefits or direct payments by the offender.

However, the competent courts may also deny access to files if this could interfere with the examination of the aggrieved party or parties, e.g. if police records influence the memory. Therefore, a justified and concrete interest must be proven. We assert this with our application for access to the files.

 

Inspection of files in criminal proceedings: Costs and procedure

When we request comprehensive file inspection, we conveniently transmit the contents of your file to you online. All you have to do is send us the necessary data and a power of attorney via our contact form.

Afterwards, you will receive an initial assessment regarding the strategic position and recommended course of action.

Hierfür berechnen wir einmalig 250,00 EUR (inkl. Umsatzsteuer).

If you only wish to inspect the file and have it sent to you (without an assessment), we charge a one-time fee of EUR 100.00 (incl. VAT).

Contact us directly now.

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If the file is more than 50 pages thick, additional processing costs of 20 cents per page may apply.

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