Decision of the Federal Constitutional Court on the inspection of files and its impact on practice
In its decision of November 12, 2020, 2 BvR 1616/18, the Federal Constitutional Court addressed the scope of the data subject's right of access to the files in administrative fine proceedings. The decision is extremely significant from the perspective of the person concerned. In the underlying case, the person concerned was accused of exceeding the permissible maximum speed of 120 km/h outside of built-up areas by 30 km/h. The speeding was measured using the PoliScan Speed M1 measuring device from the manufacturer Vitronic.
Disclosure of important documents
In summary proceedings, the complainant had requested access to the records, 1. the entire case file, 2. any existing video recording, 3. the existing measurement film, 4. if applicable, the raw measurement data of the measurement in question in unencrypted form (…), 5. the so-called "life file" (…), 6. in the operating instructions of the manufacturer of the measuring device used (…), 7. in the calibration certificate of the measuring device used, 8. in the training certificate of the measuring official - and/or 9. other evidence. Some of the sought-after documents, which, in the opinion of the person concerned, should provide arguments for the technical inaccuracy of the underlying speed measurement, were not wanted by either the fines office or, later, the district court, which argued that that some of the other requested documents were not part of the investigation file and would only be submitted by court order. The Higher Regional Court did not help either in the context of the appeal.
Setting aside the decisions of the lower courts
The constitutional complaint was successful, the judgment of the Hersbruck District Court of December 14, 2017 – 5 OWi 708 Js 110716/17 – and the order of the Bamberg Higher Regional Court of June 19, 2018 – 3 Ss OWi 672/18 – were set aside and the case was referred back to the Hersbruck District Court. The Federal Constitutional Court ruled that the party concerned has a right to access to the information he has requested. Anything else would be incompatible with the right to a fair trial. The complainant's right to access to information, including information not included in the fine file, must be sufficiently taken into account. The Federal Constitutional Court stated that the technical complexity of the measurement methods used for speed measurement and the reduced requirements for the collection of evidence and the findings of the judgment in the case of standardized measurement procedures make the data subject's need for access to further information relating to the measurement appear understandable. The person concerned must use the right of access to obtain certainty for themselves that exonerating facts arise from the requested parts of the file. The requested information, which is sufficiently specifically named, must therefore be factually and temporally related to the respective accusation of an administrative offense and must also be recognizably relevant to the defense. Henceforth, in order for a request for access to the records to be successful, the party concerned does not have to, as in the case of motions to introduce evidence in fine proceedings, "present concrete indications of technical malfunctions of the measuring device".
Right to full access to the file at the office issuing the fines
The Federal Constitutional Court emphasized that the person concerned must request the information in good time during the administrative fine proceedings, which probably means that this must generally be done before the administrative fine office. Since the decision of the Federal Constitutional Court has only just been issued, the requested parts of the file can currently still be successfully requested from the district court, even if the lawyer has not previously requested them from the fines office. This applies, of course, even if the lawyer has been wrongly denied additional access to the files by the fines office. Henceforth, the party concerned may request, in addition to the above-mentioned parts of the file, additional access to the raw measurement data of the entire measurement series in unencrypted form, as well as the submission of the order of the responsible road traffic authority regarding the speed-limiting traffic sign according to § 45 StVO to check whether the speed at this point has been restricted by an effective administrative act and by the competent authority. If the aforementioned information is not provided, the Lawyer may request the termination of the fine proceedings.
Impact of the decision in practice
According to a preliminary assessment, the decision of the Federal Constitutional Court has not yet been "received" by the local courts. The latter continue to regularly try to ward off additional requests for access to files or the release of the coveted documents.
Consultation with a specialized Lawyer and specialist Lawyer for traffic law is highly recommended.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.