File access for the defence in pre-trial detention

Under section 51 StPO the accused and their counsel have the right to inspect the file of the investigation and to make copies. This right exists in principle from the start of the investigation. It is a central instrument of defence to understand the evidence and to respond in a targeted way.

What to do now: First, submit a written application for full file access to the prosecution or the competent court, citing section 51 StPO. Second, after receiving access, secure all relevant materials and systematically evaluate them. Third, keep the deadlines for the detention hearing in view and insist on file access in time before the hearing date.

Under section 52 StPO access to the file can be restricted where it would jeopardise the purpose of the investigation. This restriction is only admissible under narrow conditions: it must be specifically justified, the risk must actually exist and the restriction must not go further than necessary. A blanket refusal is inadmissible.

What to do now: First, request the written justification of the restriction and check whether concrete reasons are stated. Second, assess whether the restriction is limited to specific parts of the file or is blanket in nature. Third, where the justification is insufficient or the restriction disproportionate, lodge an appeal.

The detention hearing under section 174 StPO requires an informed defence. Counsel who does not know the file cannot effectively rebut the grounds for detention. The law provides that counsel must receive file access in time to prepare for the hearing. A last-minute denial shortly before the hearing is therefore particularly problematic.

What to do now: First, apply for file access immediately upon learning of the hearing date and emphasise the urgency. Second, identify the key file parts on the detention question, in particular the grounds for detention and the existing investigation results. Third, if access is granted late or incomplete, apply for adjournment at the hearing and have this recorded in the minutes.

Where file access is fully or partially denied or unlawfully restricted, the accused and counsel have remedies available. These must be used promptly as timely file access before the detention hearing is decisive for an effective defence. A delay in file access can also be relevant to a detention appeal.

What to do now: First, document the denial in writing and record the stated reason. Second, immediately lodge a complaint against the denial or restriction, citing the violation of the right under section 51 StPO. Third, connect the detention appeal or release motion with the argument that effective defence was not possible without file access.