General information on access to files
The application for access to files is a central right in all criminal proceedings. This enables the accused and their criminal defence lawyer to obtain a comprehensive picture of the allegations made against the accused. Without access to the criminal file, it remains unclear which evidence and statements the law enforcement authorities are basing their suspicions on. Knowledge of the criminal file is therefore essential in order to examine the evidence, uncover any gaps in the chain of evidence or recognize inadequacies in the investigative work of the police or the prosecution authorities.
The right of the accused to inspect files is a constitutionally protected right (Art. 6 para. 1 in conjunction with para. 3 lit a and lit b ECHR), which is implemented in sections 51-53 of the Austrian Code of Criminal Procedure “StPO”.
The right to access files gives the accused the right to inspect the results of the investigation and the main proceedings available to the investigation authorities, the prosecution authorities and the court (Sec 51 para 1 StPO).
The right to inspect files also includes the inspection of evidence, insofar as this is possible without interfering with the investigation.
Restriction of access to files
The right of the accused to access files obliges the prosecuting authorities to disclose all evidence in their possession to the accused in order to give him the opportunity to comment.
In principle, access to files may only be restricted for two reasons. Firstly, personal details and other information that would enable conclusions to be drawn about the identity or the personal circumstances of the person concerned may be excluded from access to files. Secondly, access to the files may be restricted if it would jeopardize the purpose of the investigations (Sec 51 para 2 StPO).
In practice, it sometimes occurs that the prosecution authority restricts access to files between (co-)accused persons on the grounds that the parts of the file excluded from access do not concern the accused. However, such an approach is not covered by the law and can be challenged by means of an objection due to violation of the law (Sec 106 StPO).
Procedure for inspecting files
Access to the relevant file can be requested from the prosecution authority in the investigation proceedings and also from the criminal police department until the final report is issued, and from the court in the main proceedings.
In recent years, the possibility of electronic file inspection has become established at the prosecution authority and at courts. This means that access to files can be granted primarily by means of electronic data transfer, which is why the file can be accessed from anywhere without having to visit an authority in person.
The inspection of files can also be carried out in an uncomplicated manner by a lawyer, who can simultaneously summarize the results of the access of files for the accused and work out next steps as part of the defence strategy.
Criminal defence by a lawyer in criminal proceedings
If you are accused in investigation proceedings, it is advisable to hire a criminal defence lawyer who will apply for access to the files and then guide you through the proceedings.
The access to files enables the defence lawyer to view all evidence, witness statements and criminal police reports that are the subject of the proceedings. Without professional support from a criminal defence lawyer, it is often difficult for accused to understand the full extent of the evidence and to respond strategically. An experienced criminal defence lawyer can not only ensure that the access to files is complete and correct, but can also recognize possible contradictions in the results of the investigation to date at an early stage and develop a well-founded defence strategety.
