Access to the Investigation File in German Criminal Proceedings

By Dr. Julius Hagen, Attorney at Law

Know the file before responding to the allegation

After a police summons or search, suspects usually want to know the precise case against them. The notice they receive may identify an alleged offence and a period, yet say little about the evidence. The investigation file is where the witness accounts, records of official measures, analytical reports and supporting documents are collected.

A suspect knows his or her own recollection. At this stage, however, the content of other statements and the conclusions drawn from digital material are usually unknown. An immediate explanation may therefore address the wrong issue or open up a new line of enquiry. Once the file has been reviewed, counsel can prepare a focused written response. In some cases the sound course is to say nothing for the time being.

Defence counsel applies to the public prosecutor for access

Section 147(1) of the German Code of Criminal Procedure entitles defence counsel to inspect the files before the court, or those that would be submitted if charges were brought, and to examine evidence held in official custody. During the investigation, the public prosecutor decides counsel’s application. If the prosecutor’s reference number is not yet known, counsel may submit the request through the police for onward transmission; the police do not themselves authorise access.

The record may extend beyond the main file to supplementary volumes, material obtained from other proceedings, recordings and electronic data. Section 32f determines how access is provided. Electronic files are normally made available or transmitted through a secure system. Paper files may be viewed at official premises and, on a specific request, released to counsel’s office. Original exhibits usually stay with the authority.

Ongoing enquiries may delay disclosure

Until the formal completion of the investigation has been recorded, the prosecutor may temporarily withhold the file, individual parts or items of evidence where disclosure could jeopardise the investigation. This often concerns a planned measure that depends on confidentiality. The restriction must be lifted when its reason expires. By the close of the investigation at the latest, the defence must be told that full access is available again.

Section 147(3) protects certain material from this restriction. Defence counsel remains entitled to the suspect’s interview records, expert reports and records of judicial investigative acts at which counsel was, or should have been, permitted to attend. Where pre-trial detention is being enforced, or is sought after a provisional arrest, the information needed to challenge the deprivation of liberty must also be disclosed.

The official record, the permitted access and the delivery received

These are three separate aspects of file review. First, the authorities must maintain an accurate procedural record. It should identify the measures taken and the results obtained. The Federal Court of Justice has held that investigators cannot select findings at will or keep them out of the record for a period. German law provides specific mechanisms for information that legitimately requires protection.

Second, the extent of access may change during the case. A supplementary volume may remain lawfully restricted while enquiries continue. Third, the actual electronic package may not contain material kept elsewhere. Evidence folders, storage media and attachments are sometimes held separately from the main file.

Counsel starts with the contents list, pagination and cross-references. A search, seizure or interview known to the client should leave a trace in the record. Missing items and later additions are followed up by a further request.

Investigative conclusions must be checked against the evidence

Official reports often contain an interpretation as well as the underlying fact. A bank statement records a payment. Contracts, correspondence and chronology are needed to understand its commercial purpose and what the people involved knew. With digital evidence, the relevant issues include access to the device and whether the extract reproduced in the file preserves the original context.

Witness evidence is read against earlier accounts and objective circumstances. Counsel also looks for exculpatory information that appears in the record but has attracted little attention in the official assessment. This requires legal analysis and a careful reconstruction of events.

Defence counsel has the stronger right of access

Sections 147(1) to (3) govern defence counsel’s right of access. It extends to the relevant case file and to the inspection of evidence held in official custody. Certain material cannot be withheld from counsel at any stage, including the suspect’s interview records and expert reports.

An unrepresented suspect may apply for personal access under section 147(4), but that right is subject to additional restrictions. Disclosure may be limited to protect this or another investigation and the overriding interests of third parties. Effective defence also requires counsel to interpret the material. The lawyer assesses its legal significance, checks the composition of the file and compares the authorities’ account with the client’s knowledge.

Later additions form part of the review

The first disclosure reflects the file at a particular date. Further interviews, forensic work and expert reports may alter it. Larger investigations generate new volumes over time. Before any submission, counsel checks the date of the material supplied and asks whether further results have since been added.

There is no universal point at which a response becomes appropriate. Reliable documents may correct a clear error early. Provisional or restricted disclosure usually calls for patience. At times, exculpatory evidence has to be secured promptly even though the official file is still developing.

How defence counsel reviews the investigation file

Defence counsel also considers consequences beyond the criminal investigation. A submission or the way in which proceedings end may affect employment, business interests or immigration status. Those implications are addressed before counsel takes a position with the public prosecutor.