8. The battle for access to the files
An unlimited right of the defence counsel to inspect files does not exist from the beginning of the criminal proceedings, but only after the public prosecutor’s office has completed its investigations (final entry in accordance with § 169a StPO). If the conclusion of the investigation has not yet been noted in the files, the defender may be denied access to the files or individual parts of files as well as the inspection of objects of evidence held in official custody if – in the opinion of the prosecutors – this could endanger the purpose of the investigation (§ 147 (2) sentence 2 CCP).
According to the case-law of the European Court of Human Rights and the Federal Constitutional Court, in the case of particularly serious measures against the accused in the course of the preliminary proceedings, such as in particular the order for pre-trial detention or the provisional seizure of assets (confiscation of property), the defendant must in any case be granted access to the file components which are essential for the assessment of the legality of the measure.
The background to this case law of the supreme courts, which are responsible for the protection of fundamental rights, is the principle of legal hearing, which applies in any case in the case of serious violations of fundamental rights: it would be incompatible with the rule of law if we were arrested like in a novel by Franz Kafka without knowing why.
If intervention measures are ordered by the court in criminal proceedings without prior hearing of the person concerned, the legal hearing must in any case be granted subsequently in appeal proceedings. The right to be heard in court also includes information on evidence relevant to the decision (BVerfG of 05.05.2004; Ref. 2 BVR 1012/02).
The question of whether the principles developed for arrests and confiscation of property can also be applied to judicially ordered search measures or measures is currently very controversial.
This problem is particularly frequent in criminal tax proceedings or in the case of accusations of evasion of social security contributions (§ 266a StGB). These procedures are characterised by the fact that – at least at an early stage of the investigation – it is not the public prosecutor’s office that is in charge, but other authorities are involved, namely the tax investigation and the customs authorities.
The Federal Constitutional Court has already dealt with the question of inspection of files after a search. In a decision of 04.12.2006 (File No. 2 BvR 1290/05 = NStZ 2007, p. 274), it clarified that in the case of a complaint against the search, a court decision may not be issued on the matter at least for as long before the file inspection initially refused was granted and the complainant could comment on the file content.
How long a court of appeal may defer its decision has not yet been clarified under constitutional law. It is certain that a postponement of the appeal decision is not unlimitedly permissible. Such an approach would effectively undermine the fundamental rights of the person concerned to a effective hearing and a fair trial.