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You have the right to inspect files in criminal or administrative proceedings. This only applies if you belong to the authorized 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 relationship between the citizen and the state. This gives you information about the level of knowledge of the authorities. Therefore, you should not make a statement to the police or public prosecutor's office before you have had access to the file. You can also see from the file how the authorities assess your case and what they base their reasoning on. This is the only way you can prevent surprising decisions and prepare for your proceedings. We support you in applying for comprehensive access to the file.
In criminal proceedings, the parties concerned are granted the statutory right to inspect the files. This primarily includes the defendants. However, joint plaintiffs and their representatives are also entitled to request access to the files in order to assess the legal situation. The defendants are granted access to the criminal files in order to comply with Article 6 (3) of the European Commission of Human Rights. This grants every defendant in criminal proceedings the right to a fair trial.
Section 147 of the Code of Criminal Procedure is derived from Article 6 (3) of the ECHR. The right to inspect files set out there is intended to ensure equal opportunities; every accused person should know in detail what they are accused of and how this accusation came about.
Access to the files is essential both for defense lawyers in criminal proceedings and 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, let alone assessed.
The defendants themselves naturally see the incident differently from witnesses or the police. And differing accounts are also quite normal in the statements of witnesses, the recording of the incident and the questioning of the accused by the police. There is by no means always malicious intent behind this, although this cannot be ruled out either. In order to get a comprehensive picture of the big picture, to crystallize facts and uncover contradictions, it is very important for the lawyer to inspect the files.
The legislator has precisely defined the group of people who have a right to inspect files in criminal proceedings.
The right of the accused, unless they are represented by a defense lawyer, is set out in Section 147 (4). It states that defendants are entitled to inspect files and officially stored evidence. This must be done under supervision; the files are not handed over to the accused for inspection. However, restrictions apply here: If, by inspecting the files, the accused could gain knowledge that would compromise the investigation or the legitimate interests of third parties, access to the files may be refused.
The accused may find this unfair, but the restriction is irrelevant to the criminal proceedings themselves. As a rule, the possibility of inspecting files is of little use to a non-specialist defendant. They are usually unable to assess the legal situation and interpret the minutes contained in the file accordingly. Since in the course of the proceedings a public defender of choice is appointed - or in the case of the so-called "necessary defense" a public defender is appointed, the latter can and will undertake the necessary inspection of the files.
Anyone who would like to know more information in advance about the criminal offense with which they are charged is generally better advised to request access to the files through a lawyer. In particular, if there is a suspicion that the facts of the offense are at least partially true, a lawyer should definitely be instructed to inspect the files. This can result in a professional assessment of whether the penalty order should be accepted or, following an objection to it, the sentence should be passed in a main hearing, as a more favorable sentence can then be expected.
Lawyers instructed by the accused have the right to inspect files at an early stage of the investigation, but also and especially after a summary penalty order has been issued. This arises from Section 147 (1) of the German Code of Criminal Procedure (StPO); the following paragraphs determine which conditions may apply in individual cases.
Unlike the defendant, lawyers do not have to limit themselves to inspecting the file in court. They are given the case file and usually have three days to assess the state of affairs, the witness statements, the allegations and the objections of the co-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 a lawyer. However, access to expert opinions and minutes of judicial acts in which the presence of a lawyer would have been admissible may not be denied.
The purpose of a file inspection is to develop a defense strategy for impending proceedings or proceedings that have already been initiated by the penalty order. However, as the proceedings can already be taken in the wrong direction, which is unfavorable for the accused, during the initial questioning by the police, it is important to instruct a lawyer quickly.
Summons for questioning by the police
By now at the latest, you as the accused should know that you do not have to provide any information on the matter and should not provide any initially. This legal instruction by the recording police officers does not necessarily always take place within the required framework. You may be asked to provide personal details. You do not have to answer any other questions. However, if you would like to provide information on the matter directly, we recommend a non-binding consultation with our law firm. We can initially provide you with general advice. Once we have inspected the files, we will then discuss whether and to what extent it makes sense to make statements on the facts of the case.
Please do not disclose any further information about the facts of the case in an informal conversation with police officers. Even if you do not sign a formal interrogation report after such a conversation, it cannot be ruled out that the statements you made during the conversation will be referred to elsewhere (e.g. on the back of the summons to the interrogation, on a note attached to the file or on the back of the interrogation report). Even general, simple comments made in a seemingly non-committal conversation can be detrimental to you.
What should I do if I receive a penalty order?
Once the investigation - from the point of view of the police and the public prosecutor - has been completed, a penalty order will be issued. This will be sent to you by registered mail with a handover bill. It is not worth refusing 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 still deemed 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 accusation can we proceed in a targeted manner and react accordingly.
Tip: Remember that the period for lodging an objection 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. You should therefore call us immediately after receiving the penalty order so that we can take the next steps for you.
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 period of time. Often the public prosecutor's office or the criminal judge need the files to prepare for the trial, the defense lawyer of another person involved in the crime had requested access to the files as a matter of priority or the lawyer of the co-plaintiff 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 next steps 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 is more reasonable to accept the penalty order, we can withdraw this objection at any time. The penalty order then becomes legally binding. The sentence imposed - either a fine or a prison sentence - must be served. However, the court or the state treasury will usually issue separate requests for this. If no objection is lodged, the penalty order becomes legally binding, even if there would have been a legitimate chance of eliminating the offence or at least minimizing the sentence imposed.
If someone has been seriously injured as a result of the crime, this person has the right to appear as a joint plaintiff. This does not necessarily have to involve serious crimes. Even an accident caused by someone's own fault can lead to a penalty order being issued against the person responsible and the other party can attend the criminal proceedings and contribute to the outcome of the case.
For this group of people, the right to inspect files arises from Section 406 e StPO. 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 access to the files particularly important. Claims for damages, such as insurance benefits or direct payments by the offender, may depend on the guilty verdict.
However, the competent courts can also refuse access to the files if this could impair the questioning of the injured party or parties, for example by influencing their memory through police reports. A justified and specific interest must therefore be demonstrated. We assert this with our application for access to the files.
If we request full access to your file, we will send you the contents of your file conveniently online. All you need to do is send us the required data and a power of attorney using our contact form.
You will then receive an initial assessment of the strategic position and recommended course of action.
For this we charge a one-off fee of EUR 250.00 (incl. VAT).
If you only wish to have the file inspected and the file sent to you (without an assessment), we charge a one-off fee of EUR 100.00 (incl. VAT).
Contact us directly now.
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