Access to the case file.
No knowledge of the file, no defence. Section 51 StPO (Strafprozessordnung) secures the accused and their counsel access to every part of the file, every item of evidence and every expert finding, uniquely time-critical in pre-trial detention.
The core right of the defence
Access to the case file is no side-issue; it is the precondition of every effective defence. Without knowing what the file contains, no one can address the allegation or rebut the grounds for detention. Austrian law enshrines this principle in Section 51 StPO (Strafprozessordnung / Code of Criminal Procedure). The provision gives the accused and their counsel the right to consult the results of the investigation, in principle from the moment a person is formally treated as an accused. In pre-trial detention this right takes on heightened importance, because every hour without access is an hour without genuine defence. Austrian case law therefore treats timely access not as a formality but as a load-bearing element of a fair detention procedure and as an expression of effective judicial protection.
Scope: what belongs to the case file
The term "file" (Akte) is to be understood broadly. It covers not only the written submissions of the public prosecutor (Staatsanwaltschaft) and the criminal police, but equally every part of the file, every item of evidence, every object of inspection and every expert finding generated during the proceedings: records of interviews, expert reports, photographs, seized data carriers, telecommunications intercept transcripts and surveillance reports. Exculpatory material is included, because an investigation is committed to ascertaining the truth and not merely to securing conviction. The defence may make copies or obtain digital duplicates, a right that only becomes practically meaningful in complex economic cases running to thousands of pages. Where objects of inspection or originals cannot easily be duplicated, the prosecutor's office grants inspection on its premises; the defence may take notes and photographs there, provided no countervailing interests are affected. Files held separately on telecommunications surveillance (Telekommunikationsüberwachung) or covert investigations are also accessible once they become potentially admissible as evidence, otherwise their content could not be used at trial or in a detention decision in the first place.
The free copy of the file before the detention hearing
Alongside the general right to access under Section 51 StPO (Strafprozessordnung), Section 52(2)(2) StPO grants defence counsel a separate entitlement that carries particular weight in detention defence: a free copy of the file up to the first detention hearing, in so far as the relevant parts of the file may be of significance for assessing the strong suspicion of an offence or the grounds for detention. Under Section 51(2), last sentence StPO, those same parts may not be excluded from access either, the express statutory counterpart to the right to information before the detention decision. The practical point lies in how the entitlement is asserted: automatic service of the copy is provided by law only where defence is granted as legal aid (Verfahrenshilfeverteidigung, Section 52(3) StPO). Where the accused has retained private counsel, the copy must be actively requested without delay; otherwise the defence enters the detention hearing without the file material the law owes it. In every mandate we enforce this entitlement in writing as an immediate first step, addressed to the public prosecutor and the court.
Timing: when access must be granted
As a rule, the right to access the file begins with formal accused status. In pre-trial detention the question sharpens: defence counsel must know what the detention is based on before entering the detention hearing (Haftverhandlung). Section 51(2) StPO accounts for this and guarantees, ahead of the first detention hearing, access to those parts of the file that form the basis of detention, the arrest order, the material setting out the strong suspicion of an offence (dringender Tatverdacht), and the evidence relating to the grounds for detention invoked by the prosecution. Anything less would be incompatible with the right to a fair trial under Article 6 ECHR. Access in detention matters is therefore not downstream but upstream: counsel must not learn of the incriminating material for the first time in the hearing itself, but must be able to test beforehand whether it withstands legal scrutiny.
Limits: when access may be restricted
The right to access is far-reaching, but not absolute. Section 51(2) StPO allows a restriction where access would jeopardise the purpose of the investigation, for example where witnesses yet to be interviewed could be influenced by knowledge of the file, where surveillance is under way, or where a co-accused has not yet been questioned. The exception must, however, be interpreted narrowly. Any restriction must be expressly reasoned, applies only to those parts of the file from which the concrete risk arises, and never to the file as a whole. A blanket refusal on generic investigative grounds is unlawful, and often the hook for a successful appeal. Restrictions are as a rule temporary: once the witness has testified, the surveillance window has closed or the co-accused has been interviewed, the reason falls away and full access must be granted. Defence counsel should monitor these moments actively and enforce delayed release when it is due. A clarification that cannot be overstated in practice should be added: during the detention phase, the secrecy ground regularly fails to prevail. Investigative confidentiality interests almost never override access vis-à-vis the detention judge ruling on the deprivation of liberty; access is therefore as a rule open in detention proceedings, because the assessment of the strong suspicion could not even take place without the underlying parts of the file.
The special case before the detention hearing
For pre-trial detention specifically, Austrian courts have sharpened the entitlement: defence counsel must be granted, in advance of the detention hearing, access to every file element that carries the detention, the arrest order, the evidence establishing the strong suspicion of the offence, and the investigative findings relating to the grounds for detention. Where this minimum access is denied, Article 6 ECHR is breached, and that breach is itself a weight-bearing ground for appealing the detention order. The prosecution cannot argue on evidence it withholds from the defence. This principle of equality of arms (Waffengleichheit) is not a theoretical postulate in pre-trial detention; it is the foundation of any meaningful detention review. The European Court of Human Rights has repeatedly held that in detention review proceedings those documents must be accessible which are material to the assessment of the lawfulness of the deprivation of liberty; a reduction to oral summaries by the prosecution does not satisfy this standard.
Other central rights of the accused
Access to the file does not stand alone; it is part of a catalogue of rights that become especially tangible in pre-trial detention. The right to remain silent under Section 49(4) StPO in conjunction with Section 7 StPO protects the accused from being compelled to contribute to their own incrimination, no statement without preparation, no interview without counsel. The right to counsel (Section 49(2) StPO) covers first contact inside the police custody facility as well as an undisturbed conference ahead of the detention hearing. Under Section 50 StPO the accused must be informed of the charge and their rights in language they can understand; under Section 56 StPO they are entitled to an interpreter where their command of the language of the proceedings is insufficient. These rights only deliver results if asserted early. Taken together with access to the file, the picture is clear: anyone who is questioned without knowing the state of the file, or who makes statements before being informed of their rights or properly interpreted, typically produces material the defence can only correct with great difficulty later on.
Practice: how access works today
For years now, access has mostly been electronic. Via the Austrian electronic court traffic system (Elektronischer Rechtsverkehr, ERV) and the justice portal, the prosecutor's office usually provides the file within 24 to 48 hours, and routinely faster in detention matters, because the detention hearing dictates the deadlines. The defence can download, search and annotate the file and work through it systematically with the client on screen. Where files contain sensitive data (victim identity, protected witnesses), particular redaction rules apply. Delayed or incomplete release can be challenged under Sections 106 et seq. StPO. In detention cases, inadequate access is itself a standalone ground of appeal, because under those conditions the defence cannot perform its role. The practical flip-side: digital files can run to four-figure page counts, which makes swift but structured review a precondition of any credible detention defence.
Strategic value for the defence
A careful reading of the file is rarely a mere documentary exercise, it is the first step of strategy. Three points stand out in pre-trial detention. First: weaknesses in the strong suspicion (dringender Tatverdacht). Strong suspicion can only be tested against the contents of the file, for defence counsel just as much as for the prosecuting authorities, and that is precisely why obtaining a full copy quickly is a duty step: in practice, the suspicion is a very static element, once a court has assumed strong suspicion it tends to depart from that assessment only on the basis of new findings. Suspicion that on closer inspection rests on a single witness statement or a questionable chain of circumstantial evidence may not in fact support detention. Second: flawed or inadmissible evidence. Searches conducted without judicial authorisation, omitted cautions, interviews corrupted by faulty interpretation, such defects only become visible from the file itself. Third: exculpatory material. Very often there are circumstances speaking against a ground for detention (a fixed address, family ties, secure employment) which the detention reasoning has simply failed to weigh. Counsel who knows the file can address these points concretely in the detention hearing instead of denying in the abstract. In addition, the file typically shows which investigative steps are still outstanding; the resulting forecast as to likely detention duration is a strong argument for less intrusive measures (gelindere Mittel), such as bail (Kaution) or electronically monitored house arrest under Section 173a StPO. A well-founded application for electronically monitored house arrest in particular presupposes complete access to the file: without knowledge of the file, the proposed execution package, suitability of the residence, personal circumstances and concrete conditions, cannot be tailored to mirror the asserted ground for detention. In that sense, access to the file is not only retrospective but also prospective, a look forward into the course of the case.
What our firm does
Within our pre-trial detention practice, we apply for access to the file immediately upon retainer, read the file systematically and consolidate our findings into a defence line that holds up in the detention hearing and in any subsequent detention appeal (Haftbeschwerde). Where access is delayed or restricted without sufficient reason, we lodge the remedies available against such decisions. The defence in the subsequent main proceedings, trial, appeals, acquittal or conviction, is conducted in parallel through our sister site strafsachen.at.
Access to the file, the first step towards release.
We apply for access immediately upon retainer and read the file with a clear focus on the grounds for detention. Call us, in urgent matters we are reachable outside office hours, too.
A direct line to the firm.
Address
BRANDAUER Rechtsanwälte GmbH Giselakai 51 5020 Salzburg
Phone
+43 660 2407152