Federal Constitutional Court - access to raw measurement data must be guaranteed

It is a questionable but regular practice at the fining authorities. Although the person concerned is granted access to the official file on request, the files often do not contain all the relevant information. This makes it much more difficult for those affected to clarify the true facts of the case and successfully defend themselves against an unjustly issued fine.

In a recent decision, the Federal Constitutional Court upheld the constitutional complaint of a person affected and thus partially put a stop to this practice.

The facts of the case

The complainant had been measured as part of a standardized traffic measurement outside of built-up areas at a speed of 30 km/h. After receiving the hearing letter from the fines office, he requested access to the entire case file, the life file of the measuring device, the manufacturer's operating instructions, the raw measurement data of the measurement in question and the calibration certificate of the measuring device used.

Fining authority partially refuses access to information

Although all the information requested was available at the fines office, not all the data was included in the case file, as is usually the case. At his request, the person concerned was only given access to the fine file, which also contained the measurement log, the measurement result and the calibration certificate. He was also given access to the operating instructions as a file. However, the authority refused to hand over the other information requested. This would only be disclosed by court order.

The fining authority subsequently issued a fine notice, against which the person concerned lodged an objection and repeated his request for access to the information he had requested. This application for a court decision was rejected as inadmissible by the district court on the grounds that the complainant was no longer adversely affected. Based on the objection, a comprehensive examination would now take place in the judicial fine proceedings.

Courts also deny access to essential information

The complainant was also denied access to the requested information in these court proceedings - despite renewed requests. Instead, the local court sentenced the person concerned to a fine and a one-month driving ban.

The court justified this by stating that the device had been calibrated and had been used by trained personnel in accordance with the operating instructions. The accuracy of the result was therefore indicated. There were no concrete indications that would cast doubt on this result. The court's comment that no such evidence had been presented by the complainant seems cynical in view of the fact that he had been denied access to the necessary information.

The person concerned lodged an appeal on points of law against this decision. This was rejected by the Bamberg Higher Regional Court. As an argument for this decision, the OLG stated that in this case it was solely a question of the court's duty to provide information. There was therefore no violation of the principle of fair proceedings.

No less cynical than the Local Court, the Bamberg Higher Regional Court also added that the person concerned had sufficient procedural opportunities in the proceedings to actively participate in establishing the truth. It was not necessary to obtain evidence or documents from any legal point of view.

With the constitutional complaint lodged against this decision, the person concerned now successfully complained of a violation of his right to a fair trial under Art. 2 para. 1 in conjunction with Art. 20 para. 3 GG. in conjunction with Article 20 (3) of the Basic Law.

The decision of the Federal Constitutional Court

First of all, the Federal Constitutional Court emphasized that, in principle, a reduced obligation for the courts to clarify and present the facts in cases of standardized measurement procedures was not objectionable.

Reduced factual and presentation obligation for specialist courts

Accordingly, it is unobjectionable that, as a rule, the specialist courts only rely on the notification of the measurement procedure and the speed determined after deduction of the tolerance value also specified accordingly to establish a speeding offence in the case of standardized measurement procedures. As long as there are no concrete indications of possible measurement errors, this procedure is not objectionable.

This is also necessary in order to avoid overloading the administration of justice. There would be a risk of this if the technical accuracy of a measurement had to be individually reviewed and determined again without cause in every single fine procedure, especially in relation to traffic offenses that occur on a massive scale.

Data subjects must have access to information

However, the person concerned must also be given the opportunity to draw the court's attention to indications of doubt. A mere assertion that the measurement was faulty is not sufficient. Rather, he must present concrete evidence of technical malfunctions of the measuring device. However, this is only possible if they have access to the relevant information. This also applies to procedurally relevant information that was not included in the fine file.

However, in the interests of the proper administration of justice, this access is not unlimited. The person concerned must specifically and sufficiently name the requested information in a factual and temporal context with the allegation of an administrative offense. The requested information must also be relevant to the defense. This will prevent unbridled research, a considerable delay in proceedings and an abusive assertion of rights.

The decisive factor is therefore whether the person concerned or their defense counsel may reasonably consider this information to be significant for the assessment of the misdemeanor charge. In addition, the person concerned must request access to this information at an early stage in the misdemeanor proceedings.

If the person concerned succeeds in providing concrete evidence from this information that the measurement result is incorrect, the court must decide whether it can nevertheless satisfy itself of the accuracy of the measurement, if necessary by consulting an expert.

Constitutional complaint successful

In the present case, these criteria were met. The information requested by the complainant had been named by him specifically and at an early stage in the administrative offense proceedings, already in the context of the hearing letter. The complainant was also entitled to assume that this information was relevant to the administrative offense in question.

The specialist courts had therefore already failed to recognize that the complainant's right to a fair trial also entitles him to access to information that is not contained in the fine file but is available to the fining authority. Only with access to this information is it possible for the complainant to independently review the measurement process. If he is able to find evidence that the measurement result is incorrect, he is able to shake the indicated assumption of the correctness of the measurement result in the standardized measurement procedure.

Do you have questions on the subject or would you like to take action against a fine notice yourself? Get in touch with our law firm. We are at your side.