Extortion
The extortion of testimony is a crime and at the same time an official offense . The prohibition of extorting testimony is intended to protect citizens from state attacks in order to obtain testimony in criminal , fine or disciplinary proceedings .
Germany
Offense
On the one hand, the prohibition of blackmailing testimony is intended to protect the administration of justice, whereby the making of testimony through violence or torture (especially torture ), which is fundamentally subject to a prohibition on the use of evidence (§ 136a StPO (Germany) ), is penalized . In addition, the legal interest of the victim of the extortion of testimony is protected. Only a public official can be the perpetrator of the extortion of testimony, which according to Section 48 (1) WStG (Germany) also includes officers and NCOs of the Bundeswehr. The offense according to § 343 StGB (Germany) reads:
(1) Whoever, as a public official, is invited to participate
- 1. criminal proceedings, proceedings to order official custody,
- 2. fine proceedings or
- 3. a disciplinary or honorary or professional judicial procedure
is called to physically abuse another, otherwise use violence against him, threaten him with violence or mentally torment him in order to compel him to testify or explain something in the proceedings or to omit to do so is punishable by imprisonment from one year to ten years fined.
(2) In less serious cases, the penalty is imprisonment from six months to five years.
The distinction between interrogation methods that are still permissible and impermissible compulsive acts is problematic. In any case, the factual situation presupposes actions (also possible through omission) that have a physical and psychological effect. This becomes casuistic for the deprivation of sleep, interrogations with bright light, deprivation of liberty in cells that are neither equipped with light sources nor with sufficient space, use of psychotropic substances to overcome the will ( drops of truth or the like), transmission of false news, that can cause mental torment, seen.
On the internal side of the offense, the public official must have at least conditional intent with regard to the elements of the offense and at least the intention to coerce to dodge his will. The coercion success (overcoming the willingness to make a testimony) does not have to occur, whereby § 343 StGB has the type of corporate crime. Whether a justification of torture cancels out the fact of blackmailing testimony is controversial, but mostly rejected because the terms rule of law and torture are mutually exclusive. If the perpetrator assumes that the means he is using is permitted, he is in a wrong of prohibition .
Blocking effect of perversion of the law, § 339 StGB
The offense of perversion of justice (Section 339 of the Criminal Code) has a blocking effect, so that judges can only be prosecuted for criminal offenses that are intrinsically related to the management or decision of a legal matter if they have made themselves punishable at the same time for perversion of the law.
By including the contingent intent in the offense of perversion of the law, according to the correct view of the 3rd Criminal Senate of the BGH, the main reason for the blocking effect no longer applies.
Austria
In Austria, § 312 StGB (Austria) applies:
- (1) A civil servant who inflicts physical or psychological agony on a prisoner or someone else who is held by an official order, who is subject to his violence or to whom he has official access, shall be punished with imprisonment of up to two years.
- (2) A civil servant who grossly neglects his obligation to care or custody of such a person and thereby, even if only negligently, damages his health or his physical or mental development considerably is to be punished.
- (3) If the act results in serious bodily harm (Section 84 (1)), the offender is subject to imprisonment for up to three years; if it results in bodily harm with serious permanent consequences (Section 85), with imprisonment for up to five years , it results in the death of the injured party, punishable by imprisonment from one to ten years.
Switzerland
Article 41 of the Federal Act on the Administration of Federal Criminal Justice states:
- 1 Coercion, threats, promises, false statements and questioning questions are prohibited to the judge. In particular, the judge should not try to obtain a confession by such means.
- 2 If the accused refuses to testify, the proceedings must be continued regardless of this.
