File inspection (Germany)

from Wikipedia, the free encyclopedia
QA law

This article was entered in the editorial right for improvement due to formal or factual deficiencies in quality assurance . This is done in order to bring the quality of articles from the subject area law to an acceptable level. Help to eliminate the shortcomings in this article and take part in the discussion ! ( + )

The right to inspect files is an individual procedural law and in Germany includes the inspection of files that document the facts and administrative or judicial considerations that are relevant for a procedure and its result. The parties involved in the procedure have the right to inspect the files at the place where the files are stored by the court or the authorities responsible for the files . B. in your own business premises or in your own apartment and the preparation of photocopies and copies from the files. If you take it with you or send it, the issuing office produces a retent of the file to document its whereabouts.

Demarcation

The inspection of files is to be distinguished from the public display of planning documents, which serves the formal public participation in spatially significant projects. It enables anyone to raise objections to the planned project.

The freedom of information laws of the federal and state governments contain the right of everyone to inspect official files. They do not serve to represent one's own interests, but are intended to enable public control of state action.

The members of the German Bundestag have a general right to questions and information vis-à-vis the Federal Government, which, according to the case law of the Federal Constitutional Court, follows from Article 38.1 sentence 2 and Article 20.2 sentence 2 of the Basic Law. As an instrument of parliamentary control , it is used "to obtain the information necessary for the individual MPs quickly and reliably". The procedural design of the parliamentary right to ask questions is regulated in §§ 100 ff. Of the rules of procedure of the German Bundestag (GOBT) ( large and small questions , individual questions and question time , questioning of the federal government).

File inspection rights of members of the state parliaments and the municipal councils are regulated in the state constitutions or municipal regulations.

According to the Stasi Records Act (StUG), those affected, third parties, employees and beneficiaries of the State Security Service of the former GDR have special rights to information and inspection ( Section 1 (1) No. 1 and 2, Section 12 et seq. StUG).

Legal bases

The right to a fair trial according to Art. 6 ECHR guarantees each individual the opportunity to effectively represent his / her point of view. In addition to the principle of equality of arms , the right to be heard and the right to justify decisions, this also includes the right to inspect files.

The right to inspect files can arise under simple law, for example:

Scope of the right of inspection

According to the current legal opinion, the right to inspect files usually also includes the making of copies using technical aids, in practice often by taking photos. There are u. a. a judgment of the OLG Schleswig (decision of October 30, 2009, OLG Schleswig, Az .: 12 Va 6/08) regarding the use of a digital camera when inspecting land register files. The court stated: "In accordance with Section 12 (1) GBO, the applicant has a right to [...] make copies himself - also using a digital camera."

As early as 1989, the Federal Court of Justice stated that an authorized person does not have to limit himself to handwritten notes. The court stated: “The right of inspection also includes the self-evident right to document this inspection by means of self-made copies. The viewer cannot be referred to handwritten notes. "

A ruling by the Potsdam Regional Court of August 17, 2011 (Az. 4 S 31/11), in which a tenant was allowed to take photos of receipts for an operating cost statement with his own camera, is also used.

In the Social Security Code, Book 10 (SGB X), it says under Section 25, Paragraph 5 on inspection of files by those involved: "As far as the inspection of files is permitted, those involved can make extracts or copies themselves or have copies issued by the authorities."

Participants, i.e. those authorized to inspect the files or their authorized representatives, are directly affected in the administrative procedure (applicant and [potential] opponent) as well as other persons (natural and legal) who, through consultation in accordance with VwVfG § 1, Paragraph 1, Point 4, at the request of the authorities ( administrative act ) join the group of those involved in the proceedings. Find Relevant provisions to this, according to the German federal regulations for example in § 13 Administrative Procedure Act and § 12 SGB X . On the basis of special laws, such as the UIG , VIG and IFG or according to the relevant national regulations, files can be requested by any person, provided there is a relevant factual reason or an interest in information is recognizable.

Access to files in court proceedings

Inspection of files in criminal proceedings and administrative offense proceedings

The group of those who have the right to inspect files in criminal proceedings is limited. The access to the file by right can § 147 , para. 1 CCP from the back or after § 147 , para. 4 sentence 1 CCP from undefended accused or after § 49 , para. 1 OWiG from affected at all stages of the process by application are perceived. From Section 147 (5) of the Code of Criminal Procedure (StPO), defense counsel or the accused may have the right to inspect files even after the final legal proceedings. The form of inspection of files is regulated in § 32f StPO.

Historical development of file inspection for accused

In criminal proceedings, access to the files was hindered by the fact that often only the defendant's defense counsel was given full access to the files, but not the accused himself. This was based on a legal interpretation of the law, which concluded from the explicit right of the defense attorney to inspect files in § 147 StPO to an implicit prohibition of the inspection of files by the undefended accused. The reason for this was that only an organ of the administration of justice such as the defense lawyer could ensure that the file remained undamaged and that the accused could not reach any content from it that could encourage the commission of further criminal offenses (filter function). The philosophy behind it was the classic view that the accused was the object of the criminal proceedings, was already protected by the institution of the public prosecutor's office as an objective authority during the investigation, which was also obliged to investigate exonerating, and that he would at least orally learn all the facts relevant to the decision in the judicial process anyway have the opportunity there to react and defend yourself.

Thus, in order to assert their fundamental right to inspect the files, the accused were forced to hire a lawyer, even if the allegation was unfounded. The refusal to inspect the files, however, affects the fundamental right to a fair hearing , because often it is only through inspection of the investigation file that it is possible to respond precisely to the allegation and to submit corresponding applications. The more recent legal philosophy is also based on the accused as an active subject, who is allowed to build up a defense with foresight, to intervene actively in the proceedings and to have the most extensive equality of arms with the investigative authorities.

On March 18, 1997, the European Court of Human Rights (ECHR) ruled in the Foucher v. France case that the refusal of access to the files of an undefended defendant violated the European Convention on Human Rights (see Art. 6 Paragraphs 1 and 3 ECHR). Nevertheless, German courts continued to deny the defendants access to the files. In 1998, the Mainz Regional Court decided , although it was aware of the decision of the European Court of Human Rights, that the undefended defendant was not allowed to inspect the files due to the lack of a legal basis. Thereupon the Bundestag supplemented § 147 StPO in the StVÄG 1999 . However, the new paragraph contained neither a claim nor was there any mention of inspection of the files, as in paragraph 1, but only allowed the public prosecutor's office to provide the accused with information and copies from the files at their own discretion, and only if none conflicting interests were affected.

Finally, in its decision of March 13, 2003 in the Abdullah Öcalan v. Turkey case, the European Court of Human Rights reiterated that the right to inspect files in general should not be restricted to defense counsel. At least every accused must have access to the files before the main hearing at the latest. Although no decisions have been made against Germany on the question of the accused's access to files, according to the more recent case law of the Federal Constitutional Court, the case law of the ECHR must also be taken into account in the application and interpretation of German law.

After the inconsistent case law increased, the legislature again developed the code of criminal procedure on January 1, 2010 (UHaftRÄndG). The "accused who has no defense counsel" now expressly received a right to "information and copies" from the files in accordance with Section 147 (7) StPO . However, the claim was still limited compared to a defense attorney. He was only to be granted to the extent that was "necessary for an adequate defense" and continued (in contrast to the rights of defense in paragraph 1) did not speak of an inspection of the files, which ultimately still gave the public prosecutor a very large margin of interpretation and discretion . The justification for the law stated: "A general right to inspect files of the accused himself is still to be rejected in view of the potential for abuse." In particular, this could be understood to mean that the claim was only given if the accused could not afford a lawyer, the application for a public defender z. B. was rejected due to the insignificance of the allegation according to § 140 StPO and consequently a separate application due to the lack of possibility to allow a defense attorney to inspect, for which an adequate defense was actually required.

With the law on the introduction of electronic files in the judiciary and on the further promotion of electronic legal transactions of July 5, 2017, the restriction to "necessary for an adequate defense" was finally dropped, § 147 para. 7 in paragraph 4 and introduced a fundamental equality with the rights of the defense by referring to paras. 1 to 3. However, there are still restrictions. In contrast to defense counsel, the undefended accused may still be refused access on the grounds that this could jeopardize the purpose of the investigation in other criminal proceedings or would conflict with the interests of third parties. If inspection is permitted, a complete copy of the file is usually made available to the accused. For the defense attorney , this claim arises directly from Section 147 (1) StPO; for the undefended accused, this is to be applied accordingly in accordance with Section 4, Clause 1.

In practical terms, however, the accused's right of inspection is only available for purely formal reasons, in order to meet the requirements of the ECHR, and has only very little, if any, use for the accused. It is only relevant if the accused himself has a legal education. A lay person does not have the knowledge to effectively enforce his law and does not enjoy the necessary authority with which a lawyer can appear before the investigative authorities. The undefended accused is ultimately at the mercy of the arbitrariness of the judiciary and negative decisions in the case of applications for access to files. Throughout all stages of development of Section 147 of the Code of Criminal Procedure (StPO), such applications have been and are regularly rejected and only granted if the public prosecutor expects them to have tactical advantages. At the latest when the rejection is received, most of the accused simply turn on a lawyer and let them inspect the files instead of continuing to take legal action against the rejection without a lawyer. And with the help of a lawyer, it makes no sense to take action against it, because the lawyer can then also inspect the files.

The arbitrariness in practice sometimes goes so far that undefended accused had to reckon with proper detention if, due to ignorance of the legal subtleties, they submitted an application for inspection of files (which was precisely not permitted by Section 147 (7) StPO old version) instead of information and copies from the files. Due to this fact, there is also no developed case law on the right of access to files of the undefended person that could be invoked. And even if access to the file should be granted, only an experienced lawyer has the necessary knowledge to understand the file at all and to draw the right conclusions from it. Another aspect is the costs that then arise. A defense attorney usually receives the original file, while an accused is only given copies, for which costs are incurred. If the file is fairly large, the cost of making copies can quickly be higher than the cost of a lawyer who can inspect the original file at no cost.

Lawyers therefore unanimously recommend making use of a defense in any case and having the files examined professionally. Activists critical of the judiciary also emphasize the practice of the undefended person's request for access to the files: "It is not about being right in the end, but rather provoking the court to make mistakes." The right of inspection is therefore only useful for receiving a written rejection notice with legal errors, which can be used later in court proceedings - then after a defense counsel has inspected the files. In this respect, actually getting access to files is not the desired short-term goal with this conflict defense tactic.

In traffic criminal law and administrative offense law, it has long been a matter of dispute how far the right of access to files extends. In recent times, however, more and more courts are granting the accused or those affected the right to view the measurement documents (e.g. the technical instructions from the manufacturer). In some cases, individual federal states have also included this in their (internal) instructions for carrying out speed and distance measurements.

Access to files for cross-procedural purposes

The Eighth Book of the Code of Criminal Procedure (Sections 474 of the Code of Criminal Procedure et seq.) Was expanded with the 1999 Criminal Procedure Amendment Act to include the provision of information and access to files, other use of information for cross-procedural purposes, file regulations and a cross-border public prosecutor's procedural register . The use of personal information that was collected in criminal proceedings as well as the processing of personal data in files and their use such as the provision of file information and file inspection for courts, public prosecutors, authorities, private individuals and the transmission of knowledge for scientific purposes was regulated (§§ 474-480 StPO), the conditions under which police authorities may use personal information that was initially collected solely for criminal prosecution purposes for preventive police purposes (§§ 481, 482 StPO), under what conditions and within what limits personal data that were collected in criminal proceedings, processed in files and how they may be used (§§ 483–491 StPO) as well as the right to information of those whose data are stored in a file (§ 492 StPO).

The regulations served to implement the census ruling of the Federal Constitutional Court and created the necessary legal basis to guarantee the right to informational self-determination. Until then, the relevant provisions were only regulated in the guidelines for criminal proceedings and administrative fines (RiStBV).

According to § 491 , § 495 StPO, the person concerned can request information about the data concerning him in accordance with the Federal Data Protection Act ( § 57 BDSG 2018).

Right of access to files in the penal system

The prisoner's right to inspect files is regulated specifically in accordance with Section 185 of the Prison Act (StrVollzG) in conjunction with Section 19 of the Federal Data Protection Act (BDSG). In particular, the reservation of Section 19 (4) BDSG must be observed. Basically, the right of inspection exists on all files and file components, both in the administrative documents and in judicial proceedings, insofar as these contain objectifiable data or findings. In principle, the right to inspect files is preceded by a right to information. According to the case law, this right also corresponds to the duty to first request information before the right to inspect the files can be asserted. In addition, as a rule, there is only a right to information or inspection of files with regard to previously precisely identified individual components of the files. The defense counsel's independent right to inspect files, which may also exist, generally does not extend any further than the prisoner's own right.

Access to files in administrative and tax court processes

In these proceedings, the parties involved can access the court files and the official files submitted to the court in accordance with See § 100 VwGO , § 78 FGO . The court can also send these files to another location or hand them over to a lawyer involved.

The right to inspect files realizes the constitutional right to legal protection against public authority under Article 19 (4) of the Basic Law. In order to be enforceable in judicial proceedings, recourse to the substantive right to information granted by the right to informational self-determination is not necessary.

The tax code , on the other hand, does not contain any provision according to which a right to inspect files exists. The Federal Fiscal Court and the tax authorities assume, however, that the taxpayer seeking access to files during administrative proceedings or his representative is entitled to a dutiful discretionary decision by the authority.

Social administrative and judicial proceedings

Social administration procedures

Legal basis is § 25 SGB X. party is in any case the applicant . A special feature is Section 25 (2) SGB X, according to which medical diagnoses should be conveyed by a doctor or specialist. However, this is only about how, the scope is not restricted (Paragraph 1 Clause 3). In social law, inspection of files according to Section 25 (4) SGB X can also be obtained from another authority, e.g. B. Submission to the municipal administration in rural regions. Furthermore, it is explicitly noted in Paragraph 5 that the parties involved can obtain copies (photocopies). Some authorities misinterpret this as an optional rule , but the discretion rests on the party concerned , not the authority (para. 5 sentence 1). This can only demand reimbursement for expenses (paragraph 5 sentence 2), which can amount to up to € 0.50 per page. Nevertheless, access to the files is sometimes refused. This happens in particular with relevant social authorities such as the Federal Employment Agency , the social welfare agencies, the ARGEn and comparable offices, which can be enforced in court.

Social court proceedings

In social court proceedings, it is common practice to inspect files at the court, send them to other authorities and send them to lawyers. A refusal of access to files by a social court is not yet known. This means that if a social authority (see below) refuses to inspect the files, an application can be made to the social court for an interim order. If the file is sent to the court in proceedings for interim legal protection, inspection of the file can be granted directly through the court. If the authority also refuses to send the file to the court, an interim order must be insisted on. The interim order can then be served. In the event of further infringement, the interim order can be declared enforceable by the social court and the party involved can apply for enforcement measures at the local court , if necessary with the granting of legal aid , by the bailiff looking for the file at the authority. If this also fails, the next step is compulsory detention against the managing director or head of the authority, which can be applied for and enforced.

Access to files in civil (including insolvency) proceedings and in labor court proceedings

The parties in such a process are entitled to inspect the process files and to have copies made ( Section 299 (1) ZPO).

The board of directors of the court can only allow third persons to inspect the files without the consent of the parties if a legal interest can be demonstrated ( Section 299 (2) ZPO). A legal interest assumes that the rights of the third party are affected by the contents of the file. This also includes legally justified economic interests.

The court can send anonymized copies of judgments to third parties who are not involved, even if there is no legal interest in accordance with Section 299 (2) ZPO.

Access to files in voluntary jurisdiction proceedings

The parties to the proceedings can according to § 13 FamFG inspect the files at the court registry. If, for example, one of the parties to the proceedings lives in another location, the files can also be sent to the court of residence upon request. Other persons who can substantiate a legitimate interest can also inspect the files. In the case of extensive files, handing them over to a lawyer can also be considered.

For third parties who are not involved in the procedure, stricter standards must be set for the inspection interest. This applies above all to the inspection of files by authorities not involved in the proceedings in court support files. Third parties may not be allowed to inspect files that are suitable for uncovering the adoption as a child and their circumstances (Section 13 (2) sentence 2 FamFG, Section 1758 BGB).

The right to inspect the patient's file

The patient's right to inspect his or her own medical records can follow from various special laws, but will mostly result from the respective treatment contract . Since the Patient Rights Act came into force on February 26, 2013, the right to inspect patient files has been standardized in Section 630g BGB. At the same time, § 630g (3) BGB regulates the postmortem right of the heirs and next of kin to inspect the patient files.

The right of inspection now also results from the right to information under data protection law in accordance with Art. 15 GDPR. The right to information in accordance with the General Data Protection Regulation is free of charge for the patient, so that, due to the priority of application of Union law , the patient may not be charged any costs for inspection on the basis of the treatment contract - even contrary to the wording of Section 630g (2) BGB.

Web links

Individual evidence

  1. ↑ cf. For example, the Federal State of Brandenburg's File Inspection and Information Access Act (AIG). Landesrecht.brandenburg.de, accessed on June 19, 2010 .
  2. ↑ Thomas Hummel: The right to inspect files in administrative proceedings. Retrieved April 7, 2019.
  3. ↑ BVerfGE 124, 161
  4. ↑ The right to inspect files as the right of the individual Member of the Scientific Services of the German Bundestag to obtain information , elaboration of November 24, 2015, p. 3.
  5. ↑ cf. For example for Brandenburg, Rolfdieter Bohm: Member's right to inspect files according to Art. 56 Paragraphs 3 and 4 LV in documents of the Minimum Wage Commission Parliamentary Advisory Service of the Brandenburg State Parliament, February 3, 2016.
  6. ↑ for Bremen, report and motion of the constitutional and procedural committee: Strengthening the parliamentary right to control the inspection of files - law amending the state constitution of the Free Hanseatic City of Bremen Bremische Bürgerschaft, Drs. 19/1703 of June 5, 2018.
  7. ↑ for North Rhine-Westphalia, OVG Münster: Council group does not have access to trade tax files on OVG Münster, judgment of 6 November 2018 - 15 A 2638/17
  8. ^ Rainer Hofmann : The right to a fair trial, University of Frankfurt am Main, accessed on April 7, 2019.
  9. ↑ Inspection of publicly available documents or inspection of files: Legal position for making copies or taking photos of file components ( Memento from June 20, 2016 in the Internet Archive )
  10. ↑ heymanns-download.de
  11. ↑ Construction and statics archive, file issue, photocopies. ( Memento from January 23, 2017 in the Internet Archive )
  12. ↑ dejure.org
  13. ↑ Decision of July 12, 1989, BGH, Az .: IV a ARZ (VZ) 9/88
  14. ↑ openjur.de
  15. ↑ HRRS September 2003: Burhoff - The defense attorney's right to inspect files according to § 147 StPO. hrr-strafrecht.de, accessed on August 9, 2011 .
  16. ↑ hrr-strafrecht.de
  17. ↑ Inspection of files, general ( Memento from September 30, 2012 in the Internet Archive )
  18. ^ Reports 1997-II = NStZ 1998, 426.
  19. ^ LG Mainz, judgment of October 22, 1998 - 1 QS 225/98
  20. ↑ BGBl. I 2000, p. 1253.
  21. ↑ HRRS December 2004: Schlegel - The accused's right to inspect files in criminal proceedings. hrr-strafrecht.de, accessed on June 19, 2010 .
  22. ↑ ECHR decision of March 13, 2003: Abdullah Öcalan vs. Turkey. Hrr-strafrecht.de, accessed on June 19, 2010 .
  23. ↑ BVerfG NJW 2004, 3407.
  24. ↑ Act to amend the law on pre-trial detention of July 29, 2009, Federal Law Gazette I 2009, p. 2274.
  25. ↑ Bundestag printed paper 16/11644 of January 21, 2009 (dipbt.bundestag.de)
  26. ↑ Bundestag printed matter 16/11644 , p. 34.
  27. ↑ cf. Meyer-Goßner StPO, 54., 680, Rn. 4 to § 147 StPO
  28. ↑ Bundestag printed matter 18/9416 , p. 60.
  29. ↑ BGBl. I 2017, p. 2208.
  30. ↑ Bundestag printed matter 18/12203 , p. 74.
  31. ^ Pauckstadt-Maihold in Hb. Public Prosecutor, Part 1, Chapter 7. Marg. 5.
  32. ↑ projektwerkstatt.de
  33. ↑ projektwerkstatt.de
  34. ↑ Inspection of files, general - Burhoff ( Memento of January 8, 2015 in the Internet Archive ) (following the corresponding article in VRR 2011, 250)
  35. ^ Act to amend and supplement the law on criminal procedure - Criminal Procedure Amendment Act 1999 (StVÄG 1999) of August 2, 2000, Federal Law Gazette I p. 1253
  36. ^ Draft of a law to amend and supplement the law of criminal procedure - Criminal Procedure Amendment Act 1999 (StVÄG 1999) BT-Drs. 14/1484 of August 16, 1999, p. 17 ff.
  37. ^ BGH, decision of January 22, 2009 - StB 29/08
  38. ↑ Central Public Prosecutor's Procedure Register website of the Federal Commissioner for Data Protection , accessed on April 8, 2019.
  39. ↑ Note: As far as the penal system of the respective federal state is still based on the federal penal enforcement law; otherwise the relevant state law must be observed.
  40. ^ Rolf-Peter Callies, Heinz Müller-Dietz: Commentary on the Penal Law. 11th edition. CH Beck-Verlag, Munich 2008, § 185 StrVollzG, Rn. 1
  41. ^ Rolf-Peter Callies, Heinz Müller-Dietz: Commentary on the Penal Law. 11th edition. CH Beck-Verlag, Munich 2008, § 185 StrVollzG, Rn. 3, 4
  42. ^ Rolf-Peter Callies, Heinz Müller-Dietz: Commentary on the Penal Law. 11th edition. CH Beck-Verlag, Munich 2008, § 185 StrVollzG, Rn. 1, 3
  43. ^ Rolf-Peter Callies, Heinz Müller-Dietz: Commentary on the Penal Law. 11th edition. CH Beck-Verlag, Munich 2008, § 185 StrVollzG, Rn. 4th
  44. ↑ Antje Wittmann: The right to inspect files according to Section 29 VwVfG and Section 100 VwGO Working Group for Administrative Law in the DAV , 2015.
  45. ↑ BVerfG, decision of October 27, 1999 - 1 BvR 385/90 para. 62 ff.
  46. ↑ Right to inspect files in the taxation procedure right-hand lens, March 2, 2017.
  47. ^ Rüdiger Zuck: The legal interest in accessing files in civil proceedings. In: NJW . 40/2010, 2913
  48. ↑ Andreas Rein: The inspection of files by creditors in insolvency proceedings. In: NJW -Special. 21/2011, 661
  49. ↑ Andreas Rein: The inspection of files by third parties in insolvency proceedings. In: NJW -Special. 7/2012, 213
  50. ↑ OLG Frankfurt am Main, decision of June 21, 2016 - 20 VA 20/15
  51. ↑ Legal interest for inspection of files according to § 299 Abs. 2 ZPO. Specialist lawyer for labor law (FA) 2016, pp. 318–318.
  52. ↑ BGH, decision of April 5, 2017 - IV AR (VZ) 2/16
  53. ↑ Christoph Schulte-Bunert: On the right of authorities to inspect care files. In: BtPrax. 01/2010, pp. 7-11.
  54. ↑ Cologne Higher Regional Court, decision of December 2, 2013 - 7 VA 2/13
  55. ↑ Access to files by third parties and transmission of data to third parties in the youth welfare and family court proceedings Scientific Services of the German Bundestag , December 9, 2016, p. 12 ff.
  56. ↑ Information sheet on patient rights to inspect files (PDF, 5 pages, 145 kB, archive )
  57. ↑ Martin Rehborn: The patient rights law. In: GesR Legal journal for health law. Volume 12, issue 5/2013, de Gruyter Verlag, ISSN  1610-1197 , pp. 257-272 (PDF, 16 pp., 353 kB).
  58. ↑ Patient Protection Association Doctors cannot refuse access to files. In: Spiegel-Online. March 14, 2014.
  59. ↑ Bayer, Thomas: Medical documentation obligation and right to inspect patient files. An investigation into §§ 630f and 630g BGB with references to national and European data protection law . Springer, Berlin 2018, ISBN 978-3-662-57488-1 .
  60. ↑ Bayer, Thomas: Medical documentation obligation and right to inspect patient files. An investigation into §§ 630f and 630g BGB with references to national and European data protection law . Springer, Berlin 2018, ISBN 978-3-662-57488-1 , pp. 221 ff .
  61. ↑ Bayer, Thomas: Medical documentation obligation and right to inspect patient files. An investigation into §§ 630f and 630g BGB with references to national and European data protection law . Springer, Berlin 2018, ISBN 978-3-662-57488-1 , pp. 224 .