Access to the Case File

Before we have seen the file, we know very little. We know our client’s account, and we know the allegation as it appears in the hearing notice or the summons: two lines, a string of statutory references, a date. What the prosecution actually holds is in the file. An application under Section 147 StPO is therefore our first step in almost every case, and it is the reason we advise saying nothing until it has been read.

Why the file decides the case

The file contains the material from which a penalty order or an indictment is later built: the complaint, records of witness interviews, police memoranda, photographs, analyses of data carriers, expert opinions. It shows what the investigators consider established. More usefully, it shows where their evidence is thin.

Making a statement without knowing the file is guesswork. An example we encounter in endless variations: the allegation is assault, and the accused admits to “a bit of pushing” at the police station, hoping to defuse the matter. The file then turns out to show that the only named witness did not see the incident at all and that the complainant contradicts herself on the sequence of events. Without the statement, the case would have been discontinued for lack of evidence. With it, there is an admission that is very hard to undo.

This is not a rare mishap. In our experience, avoidable convictions arise more often from speaking too early than from a strong body of evidence.

Who can demand access

The right belongs first to defence counsel, who may inspect the files that are before the court or would have to be submitted to it if charges were brought, and may examine items of evidence held officially (Section 147(1) StPO).

An accused without counsel also has a right of their own (Section 147(4) StPO), subject to two limits that matter a great deal in practice: the purpose of the investigation must not be endangered, including in any other criminal proceedings, and no overriding legitimate interests of third parties may stand in the way. Where the file is still kept on paper, the authority may provide copies instead of inspection. Instructing a defence lawyer is therefore not a formality; it changes what you get to see.

When access may be refused

As long as the conclusion of the investigation has not been recorded in the file, the prosecution may refuse access to the extent that it would endanger the purpose of the investigation (Section 147(2) sentence 1 StPO). In early-stage cases this is the norm, for instance while further searches or interviews are still pending.

The statute exempts three parts of the file, which may not be withheld at any stage (Section 147(3) StPO): the records of the accused’s own interview, the records of judicial investigative acts at which the defence was or should have been allowed to attend, and expert opinions. Anyone who has already been interviewed will receive their own record in any event.

One exception is frequently overlooked. Where the accused is in pre-trial detention, or detention has been applied for following provisional arrest, the defence must be given access to the information essential for assessing the lawfulness of the deprivation of liberty; as a rule this means full access to the file (Section 147(2) sentence 2 StPO). Without knowing the grounds for detention, a detention review cannot be conducted. That is the point of the provision, and it is invoked too rarely in custody cases.

When the prosecution stonewalls

During the investigation the prosecution decides on access; later it is the presiding judge of the court seised of the matter (Section 147(5) sentence 1 StPO). A refusal can be taken to the court with jurisdiction under Section 162 StPO – though not without limits: where the conclusion of the investigation has already been recorded, where the parts protected by subsection 3 are withheld, or where the accused is not at liberty.

At the latest when the investigation is concluded, the restriction must be lifted, and the authority must notify the defence once the right again exists without limitation (Section 147(6) StPO). This makes one plain question worth asking, and many do not ask it: has the conclusion been recorded in the file? From that point on, “endangering the purpose of the investigation” no longer carries.

What we look for in the file

First the evidence in the narrow sense: who says what, and on what basis? A complaint is not evidence. Cases frequently rest in the end on a single witness statement whose history can be reconstructed from the interview records.

Then the formalities. Was the caution given properly before the interview? Was a request for counsel documented and respected? Points like these decide questions of inadmissibility, and they can only be checked against the records, not from memory.

Next the contradictions. Where a witness has been interviewed more than once, the versions almost always diverge. Whether those divergences concern peripheral detail or the core of the account determines what the statement is worth at trial.

Finally the technical material: how a data carrier was analysed, how robust a forensic comparison is, what question an expert was actually asked. This is often where the openings are, and they remain invisible without the file.

What the file means for strategy

Only with the file can one say where the case can realistically go. If the evidence does not hold, the question is discontinuation under Section 170(2) StPO. If the offence can be proved but carries little weight, discontinuation under Sections 153 and 153a StPO comes into view. Where a penalty order is on the table, the file determines whether an objection has prospects or would make matters worse.

Whether to make a statement at all is answered only at this stage. The right to silence is not a tactic for every situation; it is the default until we know what a statement would actually be responding to.

How long it takes, and what will not wait

Some weeks usually pass between the application and the arrival of the file. In large cases, where files travel between authorities, or over public holidays, it can take longer. In custody matters we press for immediate access, because there every day counts.

Deadlines run regardless. An objection to a penalty order must reach the court within two weeks of service, even if the file has not arrived. In those cases we lodge the objection to preserve the deadline and set out the grounds once we have read the file. Waiting for the file before acting means losing the case on a time limit rather than on the merits.

Victims and third parties

Victims have a narrower right of their own, exercised through a lawyer (Section 406e StPO). It requires a legitimate interest and may give way where the accused’s protected interests prevail. The two rights side by side regularly produce disputes about who sees which part of the file, and when.

What you should do now

Say nothing about the substance before the file has been read – neither at the police station nor in writing on a hearing notice. Note the file reference and the investigating authority; both appear on every letter. Check every document served on you for deadlines and pass on the date of service; with a penalty order, the day it lands in your letterbox is what counts. And get in touch early: an application for access carries more weight the sooner the defence is on record.

We apply for access, review the file for evidential value and procedural defects, and then discuss with you whether to remain silent, make a statement, or work towards discontinuation. You can reach us on +49 228 504 463 36.

This sets out the general framework. Whether access to the file can be obtained, and how much of it, depends on the stage of the proceedings and on the individual case.

This information does not replace a review of the individual case. In criminal proceedings, the defense strategy depends substantially on the case file, the specific allegation and the evidence.