A suitable instrument to enforce civil claims?
After discovering criminal offenses, the question often arises on how to ensure that civil claims against the wrongdoer – for damages or recovery of the misappropriated assets – are best safeguarded and pursued. While the new rules on asset recovery (cf. here) undoubtedly make it easier to enforce civil claims for injured persons, it should not be ignored that the law enforcement agencies will still predominantly focus on the criminal aspects of the crime and not its civil consequences. For this reason alone, it may make sense not to wait for a criminal conviction, but to early on collect own knowledge also with regard to the enforcement of civil law claims. Also in order to be able to monitor the status of the criminal procedure, the inspection of the criminal files is a suitable instrument.
The framework of criminal and administrative offense law (“Ordnungswidrigkeitenrecht“) provides for various grounds to claim access to the criminal files: While the suspect’s lawyer can request access to the file pursuant to § 147 of the Code of Criminal Procedure (“Strafprozessordnung, StPO“), the lawyer of a person who has been harmed by a criminal offense (“injured party”) is generally entitled to request access to the criminal files according to § 406 e StPO. There against, third parties outside the proceedings may only claim a limited right of access under § 475 StPO. In the area of administrative offense law, the suspect / person concerned (“Betroffener“) is entitled to file inspection according to § 49 German Administrative Offences Act (“Ordnungswidrigkeiten-Gesetz, OWiG”). By way of reference the Code of Criminal Procedure applies according to § 46 OWiG in all other cases.
Access to records for injured party
The lawyer for the injured party has a right of access to the records insofar as he establishes a “legitimate interest” of the injured party and the access does not conflict with the overriding interests of the defendant or other third parties.
The term “injured person” is not uniformly defined in the law and partly determined differently in case law and literature (see for further details OLG Hamburg, below). In any case, an “injured party” is either anyone whose legal interest has been directly injured by the criminal offense, or anybody who is impaired in a legally protected interest by a criminal offense, as far as the violated criminal law standard also serves to protect this interest or who suffers at least intermediary damages. The latter shall be the case, if the criminal law violated does not serve to protect the injured party, but the injured party would have claims under civil law (see for further details the decision of the German Constitutional Court, “Bundesverfassungsgericht, BVerfG“, below, margin note 22). Despite this very broad interpretation of the term by the highest German court, the lower instances often decide rather restrictive: Hence, the person who has acquired the claim only on the basis of an assignment shall not enjoy access to the files (OLG Brandenburg, see below, No. 13), nor shall the shareholder of a corporation which suffered damges after a criminal offense (OLG Frankfurt am Main, see below, from margin note 52).
The required “legitimate interest” shall be present e.g. if the inspection of the files serves to assess whether a complaint or a request for defense can be lodged or whether and to what extent the injured person can assert civil claims against the accused person. Also, the need to ward off such claims justifies a legitimate interest. On the other hand, access to the files which would serve the pure “exploration” of the accused, shall not be permitted.
Access to records for third party
The granting of access to criminal files for private persons not involved in the proceedings or other private bodies who are not injured is, according to the wording of § 475 StPO, initially geared to “information” only (so, in principal no direct access to the files) and requires – in the sense of § 406 e StPO – a “legitimate interest” of the third party. Information or access to the file must be refused (or only partially granted) if the suspect / person concerned has a legitimate interest in the refusal or if legal provisions stand in the way.
“Legitimate interests” and other grounds for refusal
The granting of access to criminal files has to be denied, if the person concerned (suspect) has a “legitimate interest” (“schutzwürdiges Interesse“) in the refusal (§ 475 StPO), or if such interests “prevail” (§ 406 e StPO). Such interests are particularly common in the right to informational self-determination – eg. if the files contain intimate details or trade secrets.
In a relatively recent decision, the Higher Regional Court of Rostock (OLG Rostock) ruled that a refusal to grant access to the files to uninvolved third parties already follows from tax secrecy (§ 30 (1) German General Tax Code (“Abgabenordnung, AO“)). Furthermore, the request for access to files pursuant to Section 406 e (2) StPO can be refused if and to the extent that the purpose of the criminal investigation is jeopardized, which should be expected in particular if the injured person is still to be heard as a witness and the access to the files could distort the later statement.
Conclusion
The inspection of the files of criminal proceedings can be an effective instrument to clarify facts, also and especially when preparing civil claims. When preparing a request for an access to the files, however, the applicant should observe the limitations set out in this article and he should brace himself for the fact that the lower courts often do not follow the broad interpretation of the BVerfG regarding the circle of legitimately interested parties and arm himself with a corresponding argumentation already in advance.
BVerfG, Beschl. v. 04.12.2008 – 2 BvR 1043/08
, Beschl. v. 13.7.2017 – 20 Ws 146/17
OLG Hamburg, Beschl. v. 21.3.2012 – 2 Ws 11/12
OLG Brandenburg, Beschl. v. 10.03.2009 – 1 Ws 246/08
OLG Frankfurt a. M., Beschl. v. 21.04.2010 – 2 Ws 147/08