What information is public record in Germany?
We are sometimes approached by English criminal defense lawyers asking us to provide them with official extracts from the German Commercial Register, the German Land Registry or other German Registry (e.g. birth or death certificates, marriage certificates, car ownership registry, wills register etc). The former usually does not create any difficulties, since the Commercial Register is meant to provide publicly accesible information (see the posting: How to read a German Commercial Register Extract).
Obtaining information about the registered keeper of a German vehicle is already a bit more difficult, since a legitimate interest must be established, but a German lawyer will in most cases be able to get that information without having to go through a court.
The real problems begin when it comes to the German Land Registry (Grundbuch). We have explained here that in Germany property related information is in principle considered to be confidential. Thus, information about who owns property is only granted if and to the extent the enquirer can show legitimate interest to be informed.
This is also true for many other aspects of life. To a German it is, for instance, unthinkable that anybody should be able to ask for a copy of the Will of any deceased person. The fact that this is possible in the UK simply by way of probate record search, i.e. without having to show legitimate interest whatsoever, comes as a shock to German lawyers who learn about this for the first time.
The German notion is: “Das ist Privatsache!” (This is private business). In some cases not even close relatives have a right to be shown the will of their relative if they are not heirs (for details see: Basics of German Inheritance Law). Furthermore, data protection is a big issue in Germany and Germans are very sensitive about who shall have access to their personal data without their consent.
Enquiries must explain why the person asking is entitled to know
Now, what if the counsel for the defense needs to obtain such confidential data in criminal proceedings? Whenever the German defense lawyer is unable to obtain such information directly from the registry of other competent authority the standard approach in criminal proceedings under German law is this: The counsel for the defense will petition to the court for the judge to issue a “Beweisbeschluss”, i.e. an order to take evidence. Then the land registry file would be sent to the court (not the counsel for the defense).
The proceedings in England are very different. An English solicitor usually expects the authorities to provide such information when they ask for it by simple letter. Very often this does not work in Germany because German authorities will request to be sent a court order before they are allowed to disclose the documents. This can lead to significant frustration on the part of criminal defense solicitors.
And even if the English court would issue something comparable to a German Beweisbeschluss, the court order and all the documents would have to be translated. Furthermore, some documents are very technical and the content (e.g. the content of the land registry extract) would have to be explained by a German lawyer, because a simple translation will not help to understand the meaning. For example, this is what an extract from the German land register looks like (please scroll down). As with the Commercial Register, red underlining does not mean “very important” but does instead mean “outdated / no longer valid”.
Therefore, the pragmatic approach is sometimes not to go for the actual documentary evidence itself but to ask a German lawyer or notary to provide you with an official legal opinion instead. In other cases the authorities can be convinced to disclose the document when a German lawyers explains the legitimate interest.
Basic information on law enforcement and criminal prosecution in Germany: The German Criminal Code (in English language) and the Code of Criminal Procedure are available here. German judge Joachimski here compares the practical aspects of US and German criminal procedure and here is a very informative essay on the German criminal procedure produced by the NZ Law Commision (download here: GERMAN CRIMINAL PROCEDURE – german_criminal_procedure)
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Since its formation in 2003, the law firm Graf & Partners (Germany) specialises in British-German and US-German legal matters. Do not hesitate to contact us by calling German business and litigation lawyer Bernhard Schmeilzl on +49 941 463 7070 or send an email to: mail [at] grafpartner.com