Defence
Can defence counsel see the evidence the prosecution has gathered?
Generally yes, and generally not without limits. The German code grants counsel access to the files and officially held evidence, permits refusal where it would endanger an ongoing investigation, and then requires access anyway where liberty is at stake.
In short
A person cannot answer a case they cannot see. Access to the material the state has gathered is therefore less a courtesy than a precondition — and because the material is gathered during an investigation that may still be running, it is one of the more carefully bounded rights in criminal procedure.
Why it exists
AnalysisTwo interests meet here and both are legitimate. An accused person needs to know what is said against them in order to respond to it. An investigation that is still running can be defeated by disclosing what it has and has not established. Systems resolve this by timing rather than by choosing a side — access broadens as the investigation closes.
AnalysisThe harder case is detention, because there the person is already suffering a consequence while the investigation continues. That is where systems tend to place their firmest requirement.
How it works
Section 147 of the German Code of Criminal Procedure states the right, the limit and the limit on the limit, in that order — and the third part is where the provision does its work.
- The right — § 147(1)
- Defence counsel is entitled to inspect the files that are before the court, or that would be submitted to it on the preferment of charges, and to view officially held items of evidence. The entitlement runs to counsel, and it covers exhibits as well as documents.
- The limit — § 147(2), first sentence
- Where the conclusion of the investigation is not yet noted in the files, inspection of the files or of individual parts, and viewing of officially held evidence, may be refused so far as this may endanger the purpose of the investigation. The limit is tied to a stage of the process and to a stated reason.
- The limit on the limit — § 147(2), second sentence
- Where those conditions apply and the accused is in remand detention, or detention has been applied for following provisional arrest, the information essential for assessing the lawfulness of the deprivation of liberty must be made accessible in a suitable manner — and as a rule, access to the files is to be granted to that extent.
Access also connects to a duty on the other side. Germany’s section 160(2) requires the prosecution to establish exculpatory circumstances as well as incriminating ones — so the file counsel is entitled to see is a file the prosecution was obliged to build in both directions. The general term for the wider obligation is defined at disclosure.
Common misconceptions
Widely held beliefs that do not match how the system actually operates.
Common belief: The defence sees everything the prosecution has, immediately.
In practice: German law permits refusal before the investigation is concluded where access may endanger its purpose. Access is bounded by stage and by reason.
Common belief: The defence sees nothing until trial.
In practice: Equally wrong for Germany. Where the accused is in remand detention, the information essential to assessing the lawfulness of the detention must be made accessible, and as a rule file access is granted to that extent.
Common belief: Access to the file is the same as disclosure.
In practice: They are related and not identical. Disclosure is an obligation on the prosecution to provide material; file access is an entitlement of the defence to inspect what is held. A system can arrange either without arranging the other the same way.
Common belief: These rules are broadly the same everywhere.
In practice: Only Germany was researched for this wave. Nothing here describes any other system, and the German structure is not offered as a model that others follow.
How this varies between jurisdictions
A required section on every guide. Arrangements differ between countries, and we say how.
Three questions locate a system’s arrangement, and the German provisions answer all three explicitly, which is unusual enough to be worth noting.
- Who holds the entitlement — the accused, or counsel?
- What may be withheld, and for what stated reason?
- What must be provided regardless, and when?
AnalysisGermany answers: counsel; material whose disclosure may endanger the purpose of an unconcluded investigation; and the information essential to assessing the lawfulness of detention, where the accused is detained.
Rights and accountability
AnalysisThe detention provision is the one that shows what the right is for. A person held before any determination is suffering the process’s heaviest consequence at its earliest stage, on material assembled by one side. Requiring that they be able to assess the lawfulness of that is what distinguishes detention under law from detention on assertion.
What we could not establish
- Only Germany was reached from a primary source on file access. Every other system’s arrangements were not researched and are not described; the German provisions are not presented as a general model.
- This page states what a right covers and what bounds it. It gives no account of how access is requested, timed or contested, and nothing here would assist anyone seeking material in a live matter.
Where to go next
Related: disclosure, what defence counsel does, and prosecutorial objectivity.
Related topics
- What is the job of a defence lawyer in a criminal case?
To protect the accused person’s legal interests: to advise, to see the material, to test whether the case is proved to the required standard, and to ensure the procedures the law provides are actually followed.
- Can an accused person speak to their lawyer privately, and is it ever protected absolutely?
Confidential communication is what makes advice possible, and German law guarantees it even in detention. It is not absolute anywhere researched here — and a professional duty of confidentiality is not the same thing as an evidentiary privilege.
- Does everyone accused of a crime get a lawyer, and does the state pay?
Three different rights hide inside that question — to consult a lawyer, to have one appointed, and to have the state pay. Systems grant them separately, on different conditions, and no system in this corpus grants all three to everyone.
Where this connects
Institutions: Prosecution service.
Sources
Bundesministerium der Justiz / Bundesamt für Justiz (Gesetze im Internet) · Legislation · link verified 2026-08-26
The authoritative German text, read directly. Supports § 147(1): defence counsel is entitled to inspect the files that are before the court, or that would be submitted to it on the preferment of charges, and to view officially held items of evidence. § 147(2): where the conclusion of the investigation is not yet noted in the files, inspection of the files or parts of them may be REFUSED so far as this may endanger the purpose of the investigation — and where those conditions apply and the accused is in remand detention, or it has been applied for on provisional arrest, the information essential for assessing the lawfulness of the deprivation of liberty must be made accessible in a suitable manner, access to the files being granted as a rule ("in der Regel ist insoweit Akteneinsicht zu gewähren"). Cited for the right, its limit, and the limit on that limit. It supports no claim about how access operates in practice, and none about any other country.
Strafprozessordnung (StPO) § 137 — Recht des Beschuldigten auf Hinzuziehung eines Verteidigers
Bundesministerium der Justiz / Bundesamt für Justiz (Gesetze im Internet) · Legislation · link verified 2026-08-26
The authoritative German text, read directly. Supports § 137(1) verbatim: "Der Beschuldigte kann sich in jeder Lage des Verfahrens des Beistandes eines Verteidigers bedienen" — the accused may avail himself of the assistance of defence counsel AT ANY STAGE of the proceedings — and that the number of chosen counsel may not exceed three. Cited for the existence and timing of the right to counsel in Germany. It says nothing about who pays, nothing about appointment, and nothing about any other country.
Strafprozessordnung (StPO) § 160 — Pflicht zur Sachverhaltsaufklärung (German original text)
Bundesministerium der Justiz / Bundesamt für Justiz (Gesetze im Internet) · Legislation · link verified 2026-07-24
Authoritative German text. Supports § 160(1): once the Staatsanwaltschaft learns of a suspected offence it must investigate the facts in order to decide whether to bring a public charge; and § 160(2): it must investigate exculpatory as well as incriminating circumstances and secure evidence. Supports the allocation of investigative responsibility and the objectivity duty. Does NOT support any description of investigative technique, thresholds, or practice.
United Nations · International organisation · 1966 · link verified 2026-07-23
Authentic treaty text as registered in the UN Treaty Series; registered ex officio 23 March 1976. Supports the fair-trial guarantees of Article 14, including the right to a competent, independent and impartial tribunal established by law, and the presumption of innocence (Art. 14(2)). Binding only on states party to it; does not support claims about states that have not ratified, nor about how any individual state applies it. WAVE 19 ADDITION, read from the same authentic treaty text in the UN Treaty Series PDF, text-extracted locally. Supports Article 14(5) in full: "Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law." The qualifier "according to law" is part of the provision and is load-bearing: the right is to review as the law of the state provides, not to appeal without limit or by any chosen route. Supports Article 14(6): where a person has by a FINAL decision been convicted of a criminal offence and the conviction has subsequently been reversed or the person pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to that person. Supports Article 14(3)(g), that no one shall be compelled to testify against himself or to confess guilt, and Article 14(4), that the procedure for juvenile persons shall take account of their age and the desirability of promoting their rehabilitation. WAVE 20 ADDITION. PROVENANCE, stated precisely because this record's url is a different copy: the Article 4 material below was read on 2026-08-26 from OHCHR's official PDF of the Covenant at https://www.ohchr.org/sites/default/files/ccpr.pdf. The United Nations Treaty Series copy at this record's url timed out repeatedly this session and was not re-read, so nothing in this addition rests on it. Article 4 is the derogation clause, and its four cumulative conditions are the point. Supports ICCPR Art. 4(1): “1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.”. Supports ICCPR Art. 4(2), read with Arts. 6, 7, 8, 11, 15, 16 and 18 as printed in the same document: “2. No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision.”. Supports ICCPR Art. 4(3): “3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.”. The Covenant binds States Parties to it. It is NOT evidence of any particular state's domestic law, and no country claim on this platform rests on it. It designates no organ to proclaim an emergency, assigns no role to any national legislature, and creates no civil-protection institution. The Human Rights Committee's interpretation of this article is cited separately and attributed to the Committee.WAVE 21 ADDITION. Read from the same United Nations Treaty Series PDF, text-extracted and searched. Supports Art. 9(1)-(4), and specifically that the Covenant polices ARBITRARINESS rather than closing a list of grounds: “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law”; with 9(2) (informed at the time of arrest of the reasons and promptly of any charges), 9(3) (brought promptly before a judge or other officer authorised by law to exercise judicial power; it shall not be the general rule that persons awaiting trial shall be detained in custody) and 9(4) (entitlement to take proceedings before a court which decides without delay on the lawfulness of the detention). Supports Art. 14(1): “All persons shall be equal before the courts and tribunals”, with the right to a fair and public hearing by a competent, independent and impartial tribunal established by law, the closed grounds on which press and public may be excluded, and the rule that judgment shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children. Supports Art. 14(3)(e) (“To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”), 14(3)(f) (free assistance of an interpreter) and 14(3)(g) (“Not to be compelled to testify against himself or to confess guilt” — note that the Covenant adds the confession limb, which the European Convention text does not contain). Supports Art. 14(5). VERIFIED NEGATIVES from exhaustive search of the Covenant text: “proportion” occurs zero times, “equality of arms” zero times, and “remain silent” zero times. This is treaty text binding states party to it; it is not evidence of any state's domestic law, and the corpus invariant forbidding a treaty from standing in for a country applies to it.