Any party to proceedings before a German court or authority is entitled to inspect the files. This results from the fundamental right to informational self-determination. In most cases, the files to be inspected are court files. However, it is also possible to inspect files of administrative authorities or the public prosecutor’s office. Hence, parties to German proceedings who are living abroad are also entitled to inspect files.
A right to inspect files may be given under the procedural rules for various judicial and administrative proceedings:
- for parties to criminal proceedings according to section 147 of the German Code of Criminal Procedure (Strafprozessordnung – StPO)
- for parties to administrative proceedings under section 100 of the Code of Administrative Court Procedure (Verwaltungsgerichtsordnung – VwGO)
- for parties in administrative cases with national authorities according to section 29 of the German Administrative Procedure Act (Verwaltungsverfahrensgesetz – VwVfG) or the relevant regulations of the federal states, e.g. section 29 of the Federal State Administrative Procedure Act (Landesverwaltungsverfahrensgesetz – LVwVfG)
- for parties to summary offence proceedings under section 49 of the German Act on Summary Offences (Ordnungswidrigkeitsgesetz – OWiG)
- for parties to civil proceedings according to section 299 of the German Code of Civil Procedure (Zivilprozessordnung – ZPO)
- for victims of a crime according to section 406e of the German Code of Criminal Procedure (Strafprozessordnung – StPO)
- for parties to social administrative proceedings under section 25, Book 10 of the German Social Code (Sozialgesetzbuch (SGB) X)
- for parties to a social court case under section 120 of the German Social Court Act (Sozialgerichtsgesetz – SGG)
- for parties and non-parties to proceedings in family matters and in matters of non-contentious jurisdiction according to section 13 of the Act on Proceedings in Family Matters and Matters of Non-Contentious Jurisdiction (Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit – FamFG) inspection of court files in criminal proceedings:
However, it is also possible that the authority or the court will refuse an inspection of the files. This applies, for example, if:
- the protection of data of other parties conflicts with the inspection of files, or
- tactical interests of the investigating authority conflict with the inspection of files, e.g. if the accused does not know what he is charged with. This makes it more difficult for him to counteract the prosecution.
According to section 147 para. (1) of the German Code of Criminal Procedure, the accused has a right to inspect files, which is normally exercised by the defence counsel. The defence counsel may be refused an inspection of the files pursuant to section 147 para. (2) of the Code of Criminal Procedure if investigations have not yet been concluded. If the party has no lawyer, he may be provided with information and copies of the files on request in accordance with section 147 para. (7) of the Code of Criminal Procedure. It is the public prosecutor who decides whether an inspection of the files is to be permitted during preliminary investigations, otherwise the decision is up to the presiding judge of the court to which the case was referred.
The Freedom of Information Act has been in force on a national level since 1 January 2006. According to this law, anyone, not only the parties to the proceedings, has a right to inspect all official files, unless there is a public or private interest to the contrary. In the case of federal state authorities, the relevant laws of the respective federal state must be observed. On a federal state level, Berlin, Brandenburg, Bremen, Hamburg, Mecklenburg-Western Pomerania, North Rhine-Westphalia, Saarland, Saxony-Anhalt, Schleswig-Holstein and Thuringia already have a Freedom of Information Act.
Inspection of files in civil proceedings:
The parties involved can inspect the files, and it is also possible to obtain extracts and copies. If third parties can credibly demonstrate a legal interest in the files, they may also inspect the files. Only lawyers may take files out of the office.
Important Note: This article has been prepared by lawyer Helmer Tieben for general information purposes only. Mr. Tieben does not accept any liability to any person or organisation for the use or reliance of the information contained in this article. On any specific matter, kindly contact us by dialing 0221 – 80187670 or sending us an email to firstname.lastname@example.org