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MIL OSI Translation. Region: Germany / Deutschland –

Source: The Federal Constitutional Court press release No. 105/2020 of December 15, 2020, Decision of November 12, 20202 BvR 1616/18

With a decision published today, the 3rd Chamber of the Second Senate of the Federal Constitutional Court has upheld a constitutional complaint concerning the access of the person concerned in the fine proceedings for speeding to information that was not part of the fine file. The complainant initially unsuccessfully sought access to information as part of the administrative fine proceedings, including the life record of the measuring device used, the calibration certificate and the so-called raw measurement data, which were not in the fine file. The objection lodged against the subsequently issued fine was unsuccessful before the specialized courts. The complainant was not granted the coveted access to the information even by the specialized courts before his conviction. The decisions of the specialized courts violate the complainant’s right to a fair trial under Article 2, Paragraph 1 in conjunction with Article 20, Paragraph 3 of the Basic Law.

Facts: The complainant applied for an inspection of the entire procedural file, the life record of the measuring device, the operating instructions of the manufacturer, the raw measurement data of the measurement in question and the calibration certificate of the measuring device used as part of a fine procedure for exceeding the speed limit. The fine office then granted access to the fine file, which, in addition to the measurement protocol and the measurement result, also contained the calibration certificate for the measuring device used. The operating instructions for the measuring device used were made available to the complainant as a file on the website of the fines office. With regard to the other information requested, the authority stated that it was not part of the investigation file and would only be submitted by court order. The complainant objected to the subsequent fine and repeated his request. The district court rejected an application by the complainant for a court decision as inadmissible because the complainant was no longer complained. As a result of the objection, a comprehensive examination of whether the complainant had actually committed the offense against the road traffic regulations of which he was accused will now be carried out in the judicial fine proceedings back with § 238 Abs. 2 StPO, sentenced him to a fine for exceeding the maximum speed outside built-up areas by 30 km / h and issued him a one-month driving ban. The complainant had not previously been granted the coveted access to the information. In order to justify the conviction, the district court stated that a speed measurement with the measuring device used was a so-called standardized measuring method. The device was calibrated and used by trained personnel in accordance with the manufacturer’s instructions. The correctness of the measured speed value is thus indicated. Concrete indications that would be suitable to justify doubts about the functionality or proper handling of the measuring device and therefore about the correctness of the measurement result did not arise in the course of the main hearing and were not presented in advance by the complainant. The Bamberg Higher Regional Court dismissed the appeal lodged against it and stated, among other things, that there was no violation of the principle of fair trial, since it was solely a question of the court’s duty to provide information. The person concerned has sufficient procedural opportunities to actively participate in the process of establishing the truth. However, the use of evidence or documents is not required from any legal point of view. With his constitutional complaint, the complainant alleges, among other things, a violation of his right to a fair trial following Article 2 (1) in conjunction with Article 20 (3) GG Specialized courts. Main considerations of the Chamber: The admissible constitutional complaint is well founded. The challenged decisions violate the complainant’s right to a fair trial, which is based on Article 2, Paragraph 1 in conjunction with Article 20, Paragraph 3 of the Basic Law. Constitutionally, it is not objectionable that the specialized courts have assumed a reduced obligation to clarify and explain the facts in the case of a standardized measurement procedure. If there are no concerns about the correctness of the measurement result, it is generally sufficient to provide evidence of a speed violation by reporting the measurement method used, the determined speed after deducting the tolerance and the tolerance value taken into account. In the case of standardized measurement methods, the determination and disclosure obligations of the trial court are therefore generally reduced – without concrete evidence of possible measurement errors. However, the person concerned has the opportunity to draw the criminal court’s attention to doubts and to submit a corresponding application for evidence. To do this, he must provide specific indications of technical malfunctions in the measuring device. The mere assertion that the measurement is incorrect does not constitute an obligation for the court to provide clarification. This approach of the specialized courts in the administrative offense proceedings is not objectionable. This ensures that, in the event of massive traffic offenses, the technical correctness of a measurement does not have to be rechecked in each individual fine proceedings without cause. The lower level of injustice in administrative offenses, especially in the area of ​​mass traffic violations, can be taken into account by simplifying the procedure. In principle, the right to a fair trial also results in the right to gain knowledge of such content in administrative offense proceedings that arose for the purpose of the investigation but was not put on record. If the person concerned desires access to information that is outside of the court files in order to obtain certainty about facts serving his discharge, this access is to be granted in principle. However, this does not mean that the right of access to information outside the file is unlimited. Particularly in the area of ​​large numbers of administrative offenses, an appropriate limitation of access to information is required with regard to the proper functioning of the administration of justice. The coveted, sufficiently specifically named information must therefore, on the one hand, be factually and temporally related to the respective regulatory offense allegation and, on the other hand, be relevant for the defense in order to prevent endless research, considerable delays in proceedings and abuse of law. In this respect, the perspective of the person concerned or his defense lawyer is decisive. The decisive factor is whether the latter can reasonably consider information to be significant for assessing the regulatory offense allegation. Granting such access to information does not remove the basis for the case law on standardized measurement procedures. The person concerned has a right of access from the beginning to the end of the procedure. However, he can only successfully defend himself with the knowledge gained from access to further information if he requests it in good time in the fine proceedings. As long as the review of the information does not reveal any sufficiently concrete indications of the incorrectness of the measurement result, the duties of clarification and determination of the specialist courts remain reduced according to the principles of the standardized measurement procedure. If, however, the person concerned finds concrete indications that the measurement result is incorrect, the court must decide whether it can nevertheless convince itself of the speed violation – possibly with the assistance of an expert. In addition, the options for rejecting requests for evidence under Section 77 (2) OWiG remain unaffected. In the complainant’s proceedings, the specialized courts have already failed to recognize that the complainant’s right to a fair trial is in principle a right to access to information that is not in the fine file but is available to the fine authority. Contrary to the assumption of the specialized courts, the complainant did not care about the expansion of the files or the judicial clarification obligation. Rather, it was about the possibility of an independent review of the measuring process in order – if necessary – to be able to shake the assumption of the standardized measuring method if there are indications of the incorrectness of the measuring result.


EDITOR’S NOTE: This article is a translation. Apologies should the grammar and / or sentence structure not be perfect.

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