In Austrian criminal proceedings, the accused has his own right to inspect files, which enables him to inspect the criminal file concerning him in order to understand what charges are being brought against him. The law enforcement authorities must therefore make accessible to him those parts of the file that relate to the results of the preliminary and main proceedings available to the criminal police, the public prosecutor’s office and the court. This gives the accused knowledge of incriminating and exculpatory evidence as well as the status of the investigation.

This knowledge is a prerequisite for taking a factual position and building an effective defense. The right of the accused to inspect files is regulated independently, anchored in the Code of Criminal Procedure and is further elaborated in §§ 51 and 52 StPO.

Select your preferred appointment now:Free initial consultation

Position of file inspection in the system of rights of the accused

File inspection occupies a key position among the rights of the accused in criminal proceedings. It forms the factual basis for ensuring that further procedural rights do not merely exist formally, but can be exercised effectively in terms of content. Only knowledge of the contents of the file enables the accused to classify statements, review accusations and take targeted defense actions.

The right to inspect files is not isolated, but works together with other rights of the accused. Without file inspection, in particular the right to be heard, the right to defense and the right to comment lose their practical value. File inspection creates transparency and prevents the accused from merely being reactively at the mercy of proceedings.

Typical functions of file inspection in criminal proceedings include:

• Verifiability of the accusation and the underlying factual assumptions
• Review of the evidence, including exculpatory circumstances
• Preparation of statements, motions for evidence and legal remedies
• Strategic planning of the defense in the preliminary and main proceedings

Thus, file inspection fulfills a controlling function for the entire defense behavior. It often decides whether proceedings are actively influenced or only passively accompanied.

Right of the accused to inspect files

Personal scope

The right to inspect files is granted to the accused as a party to the proceedings. What is decisive is not a formal indictment, but the status as an accused person in the criminal proceedings. From this point on, the accused can apply for file inspection and invoke this right.

The right exists regardless of whether the accused acts himself or is represented by a defense counsel. In practice, file inspection is often carried out via the defense counsel, as he legally classifies the contents of the file and prepares it for the defense. However, the claim always remains assigned to the accused.

Material scope of file inspection

The material scope of file inspection includes the inspection of the results of the preliminary and main proceedings available to the criminal police, the public prosecutor’s office and the court. This includes in particular investigation reports, statements, expert opinions and other evidence, insofar as they appear in the criminal file and are not exceptionally excluded from inspection.

File inspection enables the accused above all:

• the knowledge of incriminating and exculpatory evidence,
• the assessment of the strength of the evidence,
• the evaluation of the previous course of the investigation,
• the preparation of further defense steps.

Select your preferred appointment now:Free initial consultation

Copies and duplicates of the criminal file

The right of the accused to inspect files includes not only the inspection of the criminal file, but also the right to receive copies or printouts. This issue takes place upon request and generally for a fee. Insofar as the technical possibilities allow, the accused may also be permitted to make copies himself, provided that this right is not exercised by a defense counsel.

Excluded from the issue are sound or image recordings, the possession of which is generally prohibited, or which concern content that, according to the statutory provisions, is not subject to file inspection. If issued recordings or copies concern legitimate confidentiality interests of other parties to the proceedings or third parties, the accused may be subject to a duty of confidentiality. Insofar as this is necessary to ensure data security, copies must be handed over on data carriers provided by the law enforcement authorities.

Exemption from fees

In the following cases, no fees are to be paid for copies or printouts:

• if and as long as the accused has been granted legal aid,
• if the accused is in custody, until the first custody hearing or the earlier main hearing, with regard to all file documents that may be of importance for the assessment of the suspicion or the grounds for detention,
• for findings and expert opinions from experts, authorities, agencies and institutions,
• for the production of a copy or a printout of the record of his own interrogation.

If a legal aid defense counsel is assigned to the accused, copies of the file must be served on him ex officio without delay, in the case of detention by the court. The same applies to the aforementioned cases of exemption from fees for file documents relevant to detention as well as for findings and expert opinions. The defense counsel of an accused in custody may also request that the aforementioned file documents relevant to detention also be transmitted to him ex officio in the further course of proceedings.

Select your preferred appointment now:Free initial consultation

Restriction of file inspection

The right of the accused to inspect files is not unlimited. The Code of Criminal Procedure allows restrictions if overriding interests make full disclosure inadmissible. However, such restrictions are the exception and require objective justification.

A restriction is particularly possible if the inspection would jeopardize the purpose of ongoing investigations or if legitimate interests of third parties are affected. In these cases, file inspection may be limited in time or content without undermining the right to defense as a whole.

Typical reasons for restricting file inspection are:

• Endangering the purpose of the investigation, for example in the case of investigation measures that are still open
• Protection of particularly sensitive personal data
• Preservation of the identity of endangered persons
• Securing covert investigations or secret measures

A merely general or formulaic restriction is inadmissible. The restriction must specifically relate to individual parts of the file and may only go as far as is necessary to protect the respective interest. The essential core of the defense must be preserved.

Select your preferred appointment now:Free initial consultation

File inspection during pre-trial detention

If pre-trial detention has been imposed on the accused, file inspection may not be restricted insofar as file documents concern the suspicion or the grounds for detention. At this stage of the proceedings, the accused must have the opportunity to fully understand the basis of the detention decision.

These file components must generally be made available to the accused or his defense counsel free of charge, at least until the first detention hearing or an earlier main hearing.

Procedure for file inspection

Application

File inspection does not take place automatically, but requires an application by the accused or his defense counsel. The application is addressed to the responsible law enforcement authority and can be made at any stage of the proceedings as soon as the status as an accused exists.

In practice, it makes sense to formulate the application clearly and in a structured manner, especially if certain parts of the file or periods of time are of particular importance. A precise application facilitates the decision and speeds up the process.

Decision on file inspection

The authority in possession of the criminal file decides on the application for file inspection. Depending on the stage of the proceedings, this is the public prosecutor’s office or the court. The decision can fully grant, partially restrict or reject file inspection, whereby any restriction must be objectively justified.

It is crucial for the accused that the decision remains comprehensible and verifiable. An unjustified refusal or restriction opens up the intended legal protection.

Electronic file inspection

File inspection today takes place predominantly in electronic form. After approval, the approved parts of the file are made available digitally. This allows the accused to access the file regardless of location and evaluate it together with his defense counsel.

Electronic file inspection primarily serves:

• the rapid availability of the documents,
• the efficient preparation of the defense,
• the structured review of extensive files.

The special procedure for file inspection as well as legal protection in the event of procedural violations are regulated separately and dealt with on a separate page.

Select your preferred appointment now:Free initial consultation

Systematic delimitation from further rights of access to files

The right of the accused to inspect files is not a general right of inspection, but an independent right of defense with a clearly defined function. It differs significantly in purpose, scope and design from the rights of access to files of other parties to the proceedings. This differentiation is essential to avoid misconceptions about the scope and limits of file inspection.

While the file inspection of the accused is aimed at the effective defense against a concrete accusation, other rights of access to files pursue other protection and participation interests. They are linked to different roles in the criminal proceedings and are each subject to their own requirements.

The following rights of access to files can be distinguished in overview:

• Right of the accused to inspect files as an instrument of defense
• Right of the victim to inspect files to protect the victim’s interests and rights to information
• File inspection of the private party in connection with private law claims
• General file inspection according to special regulations, for example outside the classic party status

These rights exist side by side, but are not identical. In particular, the scope of the accused’s file inspection may not be inferred from the file inspection of a victim or a private party and vice versa.

For the accused, this system means that the scope and enforcement of his right to inspect files are governed exclusively by the provisions provided for this purpose. Restrictions or extensions cannot be derived from other rights of access to files. Disputes about the scope or refusal of file inspection must therefore always be assessed on the basis of the rights of the accused.

The further rights of access to files are presented separately on separate pages and dealt with in more detail. This keeps the delimitation clear and the system of the Code of Criminal Procedure comprehensible.

Select your preferred appointment now:Free initial consultation

Your Benefits with Legal Assistance

File inspection is a formal procedural right, the practical benefit of which depends largely on how it is applied for, evaluated and classified. For the client, file inspection can be handled in practice by a lawyer without the client having to deal with the formal procedures himself.

The lawyer takes over the application for file inspection, the systematic review of the criminal file and the legal classification of the file content. In this way, the client receives a structured overview of the accusation, the evidence and the status of the proceedings.

Legal support offers the following advantages in particular:

• Taking over the file inspection by the lawyer vis-à-vis the public prosecutor’s office and the court
• Ordered preparation of the file content in an understandable form
• Objective classification of the evidence and the status of the proceedings
• Well-founded basis for further procedural decisions

File inspection can be carried out by a lawyer not only for accused persons, but also for victims and private parties. Especially for victims, legal file inspection is an important way to understand the status of the proceedings and exercise rights without having to deal with the formal requirements of the criminal proceedings themselves.

Through legal support, file inspection becomes a clear and legally sound instrument that provides the client with orientation and creates an objective basis for further action.

Select your preferred appointment now:Free initial consultation

FAQ – Frequently Asked Questions

Select your preferred appointment now:Free initial consultation