Instruction (law)

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Under instruction ( English Miranda warning , caution ) one understands in the legal system the information of a legal subject about the situation and his rights ex officio as prescribed by legal norms . A typical instruction consists of pointing out to the accused during a preliminary investigation that he has the right to a defense counsel and that he is free to comment on the matter .

General

The demarcation of the terms instruction, advice and information often causes difficulties because the laws do not have a uniform linguistic usage and, moreover, the variety of procedural situations makes different demands on the acting authority . Advice is the undertaking of information activities open to dialogue at the request of the person being advised, while instruction is a monologue by the instructor who points out the possible legal consequences . When giving advice, the person being counseled can decide at the end of the consultation whether to accept the advice and which behavior to choose now. The instruction is a sovereign duty of the law enforcement agencies, which is an indispensable part of a fair trial.

history

A written information was already known in 1460, as a Christian I the monastery Ahrensboek his possessions and privileges "for truthful and written instruction" confirmed ( "na wahrhafftiger unde schriftliker beleringe"). Obviously, the word appeared for the first time in today's spelling in November 1539 during the legal instruction by the Schöffenstuhl in Aachen. In the German late Middle Ages, upper courts were legal instruction offices for the instruction of courts and important private individuals. Charles IV revitalized Aachen's capital city function by establishing in writing in 1356 the upper court rights, i.e. Aachen as the legal instruction center for instructing other courts.

In February 1877, the legislature in Germany published the first version of the Reich's Criminal Procedure Code, in which, as recently as 1881, a clear instruction of the accused about his right to remain silent was rejected on the grounds that this gave the impression that a moral obligation to make truthful statements was denied . It was feared that an instruction would encourage silence , which would be interpreted to the detriment of the accused. The old version of § 136 StPO consisted of questioning the accused "whether he wanted to respond to the accusation". When the current Code of Criminal Procedure (StPO) was amended in April 1965 , the legislature refrained from standardizing an obligation to provide information. However, he also introduced a duty to instruct the police and the public prosecutor's office (§§ 161a, Paragraph 1, Sentence 2, StPO and § 163, Paragraph 3, StPO).

The accused's reference to his right to refuse to testify has also been anchored in Article 114 of the French Code of Criminal Procedure ( French Code de procédure pénale ) since December 1897 .

The well-known from movies instruction suspects or offenders in the United States ( English Miranda warning , reading one's rights ), there is only since June 1966, when the Supreme Court of the United States in the case of Ernesto Arturo Miranda (1941-1976) against the state Arizona finally decided. Miranda had been identified as a robber , kidnapper and rapist in a confrontation and convicted after his confession . The Supreme Court overturned the previous conviction because Miranda was exposed to psychological stress during interrogation and his rights were not clarified. If the accused is questioned by law enforcement authorities while in custody ( English custodial interrogation ), he has since had to be instructed: “You have the right to remain silent. Anything you say can and will be used against you in court. You have the right to call a defense counsel for any questioning. If you can't afford a defense attorney, you will be provided with one. Do you understand these rights? ”The Supreme Court made it clear that the right against self-incrimination enshrined in the 5th Amendment to the United States Constitution requires law enforcement to keep suspects silent about their rights and to clarify their right to a lawyer.

It was not until May 1968 that the Federal Court of Justice (BGH) recognized the possibility of a ban on exploitation in the violation of the duty to instruct during the main hearing, although it continued to generally assume no ban on exploitation. In the judgment he stated that with the new version of § 136 StPO - the accused should be informed that he is free according to the law to comment on the accusation or not to testify on the matter - nothing changes in the previous legal situation, but rather the choice should only be made clearer to the accused than before. The reference that the accused has the right at any time - even before his interrogation - to question a defense lawyer to be elected by him would also only provide an illustration of the previous legal situation. In June 1983, the BGH still held Section 136 of the Code of Criminal Procedure as a mere regulatory provision, the disregard of which was no obstacle to the use of evidence.

In May 2010 the Federal Court of Justice made it clear in criminal law: “The instruction is an indispensable part of a fair trial based on the rule of law. ... If the instruction is not given during imprisonment, the detention order suffers from a fundamental procedural defect that leads to its illegality ”. The EU Directive 2012/13 / EU of May 2012 required the addition in § 136 StPO that the accused can claim the appointment of a defense counsel; this implementation came into force in July 2013.

Legal position

Instructions are to be given ex officio in the preliminary investigation and in the main court hearing . The central provision of Section 136, Paragraph 1, Sentence 2 of the Code of Criminal Procedure requires instruction by the police and the public prosecutor's office prior to the start of the first judicial hearing , and Section 163a, Paragraph 4, Sentence 2 of the Code of Criminal Procedure (by reference to Section 136 of the Code of Criminal Procedure) . This means that the instructions provided for in Section 136 of the Code of Criminal Procedure are necessary at the first hearing in the preliminary investigation. The instruction must contain information that

It was not until February 1992 that the BGH gave up its previous case law and now introduced a ban on the use of evidence , according to which the duty of instruction must be observed before an accused is questioned, because otherwise the accused's statements may not be used. As a result, any existing evidence may not be used in the proceedings without prior instruction.

Investigative authorities

The 1 Obligation on the § 136 para. 2 sentence Code of Criminal Procedure applies to all the law enforcement appointed law enforcement agencies . These include, above all, the public prosecutor's offices and the police (in Germany the state police , the federal police and the Federal Criminal Police Office ), the customs administration and, in the area of tax law, the financial administration with its tax investigation departments .

police

Before being questioned by the police, the accused or the person concerned must be instructed about their rights in accordance with Section 136 of the Code of Criminal Procedure. These instructions concern in particular

The instruction must be complete, clear and urgent. The person concerned must be instructed himself, even if he is a minor or not legally competent for other reasons . If, for example, there is no information about the possibility of consulting a lawyer, the instruction is incomplete and ineffective.

Public prosecutor

According to Section 52 (3) of the Code of Criminal Procedure and Section 55 (2) of the Code of Criminal Procedure, persons with the right to refuse to give evidence ( witnesses and experts ) are to be instructed about this prior to their interrogation in the preliminary investigation and in the main hearing. According to Section 81c (3) StPO, this also applies to persons other than the accused. According to Section 171 of the Code of Criminal Procedure, the public prosecutor's office has to inform the injured party if it does not admit an action or if it discontinues the proceedings . The injured can this decision at the General Prosecutor's Office within the by § 172 provided para. 1 StPO term challenge. If the instruction according to § 81c Abs. 5 StPO is given by auxiliary officers of the public prosecutor's office (police), they must give the instruction.

Criminal trial

According to Section 136 of the Code of Criminal Procedure, the accused must be informed by the judge before the start of the first interrogation , which offense he is charged with and which criminal provisions are applicable. It should be pointed out that, according to the law, he is free to comment on the accusation or not to testify on the matter and at any time, even before his interrogation, to question a defense attorney to be chosen by him. He is also to be instructed that he can apply for individual evidence to be taken in order to exonerate himself and claim the appointment of a defense attorney in accordance with Section 141 (1) and (3) StPO. As part of the main hearing, Section 243 (5) of the Code of Criminal Procedure also provides that the defendant must be informed that he is free to comment on the charge or not to testify on the matter. According to Section 273 (1a) of the Code of Criminal Procedure, the minutes of the negotiations must also record the instructions.

Criminal tax proceedings

Due to § § 386 Abs. 2 AO and § 397 Abs. 1 AO, the duty to instruct in criminal procedure law is also extended to the financial administration in criminal tax proceedings.

Exploitation prohibition

Violations of the duty of instruction result in a ban on exploitation . When announcing a contestable decision, the person concerned must be instructed about the possibilities of contestation and the deadlines and forms stipulated for this in accordance with Section 35a of the Code of Criminal Procedure . If an instruction is not given in whole or in part, a missed period of appeal is deemed to be through no fault of the person according to § 44 StPO.

Notaries

Notaries have a duty to instruct in the context of the notarization . In a hearing in front of the notary, the parties involved declare their will ( § 8 BeurkG), which is recorded, read out, approved and signed by the parties and the notary personally ( § 9 , § 13 BeurkG). As part of the instruction, the notary, as a legally qualified person, has to research the will and the goals of the parties involved, to inform them comprehensively about legal dangers and the legal consequences of the notarization ( advisory function ) and to formulate the regulations clearly and conclusively ( evidence function ). The notary has to show the parties involved ways in which risks can be avoided.

lawyers

In the case of lawyers and tax consultants , consultancy contracts are based, which predominantly contain legal advice or tax advice . Therefore, it is mostly about advice , not instruction. Legal instruction and advice form the actual legal core of contract drafting , because after all, the concrete contract drafting is the realization and expression of the party will declared as a result of instruction and advice. Based on the established facts , the instruction is about the legal education of those involved about the legal transaction in question with regard to its requirements, dependencies, legal consequences and the associated dangers. The advantages and disadvantages of the design options are to be shown in an instruction.

Legal remedies

An instruction on legal remedies is an oral or written declaration that and how a decision (such as an administrative act ) can be contested through an appeal . It contains the form, deadline and office to which the appeal is to be lodged. In criminal proceedings , it must be given orally if the decision has been announced ( § 35a StPO), in labor jurisdiction ( § 9 Paragraph 5 ArbGG) and in administrative , financial and social jurisdiction in the judgment ( § 117 Paragraph 2 No. 6 VwGO) . Failure to provide information on legal remedies leads to reinstatement in the previous status ( Section 44 sentence 2 StPO).

In civil proceedings there has only been an instruction on legal remedies since December 2012 through the law introducing legal remedies in civil proceedings and amending other regulations . According to Section 232 of the German Code of Civil Procedure (ZPO), every contestable judicial decision has to be informed about the legal remedy, objection, objection or reminder as well as about the court to which the appeal is to be lodged, about the seat of the court and about the form and deadline to be observed contain.

International

In Switzerland , according to Art. 158 StPO, the police or public prosecutor's office must inform the accused at the beginning of the first interview in a language they understand that preliminary proceedings have been initiated against them and which criminal offenses are the subject of the proceedings, they are the testimony and the participation can refuse, it is entitled to appoint a defense or, if necessary, to apply for an official defense and it can request a translator. According to Art. 143 Para. 1c StPO, she is to be instructed comprehensively about her rights and obligations. Interviews without this information cannot be used (Art. 158 Para. 2 StPO), the instruction must be noted in the protocol (Art. 143 Para. 2 StPO).

In Austria , too, legally compliant instruction is important in criminal proceedings so that the accused can exercise their rights of defense in good time in every procedural situation. For this purpose, a judicial instruction obligation is provided in § 3 StPO , which is classified as weaker than the obligation to establish the truth and is part of the judicial duty of care.

According to Article 36, Paragraph 1b, Clause 3 of the Vienna Convention on Consular Relations (WÜK), all German state organs are obliged to inform a foreign accused of his right to consular assistance as soon as he is detained. The reverse also applies to all German accused abroad. According to no. 135 RiVASt, the duty to instruct already arises upon arrest .

See also

Web links

Wiktionary: instruction  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ Dieter Kugelmann, The informational legal position of the citizen , 2001, p. 232
  2. ↑ Werner Kallmeyer, Beraten und Betreuen , 200, p. 279 f.
  3. ^ Rainer Schützeichel, Sociological Communication Theories , 2004, p. 277
  4. ↑ Jürgen Wätjer, The history of the Carthusian monastery "Templum Beatae Mariae" in Ahrensbök (1397-1564) , 1988, p. 21
  5. ↑ Jürgen Weitzel, The Struggle for Appellation to the Reich Chamber of Commerce , 1976, p. 181
  6. ↑ Bodo M. Baumunk / Gerhard Brunn, Capital: Centers, Residences, Metropolises in German History , 1989, p. 48
  7. ↑ Werner Hahn / Eduard Stegemann, materials on the StPO , Department 1, 1881, p. 139
  8. ↑ Werner Hahn / Eduard Stegemann, materials on the StPO , Department 1, 1881, p. 139 f.
  9. ↑ United States Supreme Court, MIRANDA v. ARIZONA , No. 759, 384 US 436, 1966, Argued: Decided June 13, 1966
  10. ↑ Miranda was of no use because he was convicted again and murdered after his release
  11. ^ BGH, judgment of May 31, 1968, Az .: 4 StR 19/68
  12. ↑ Bundestag printed paper No. IV / 178 of February 7, 1962, official justification for the federal government's draft law , p. 32
  13. ↑ BGH, judgment of June 7, 1983, Az .: 5 StR 409/81
  14. ↑ BGH, judgment of May 6, 2010, Az .: V ZB 233/09 (deprivation of liberty due to deportation)
  15. ↑ Wolfgang Lübke, Steuerfahndung , 2008, p. 68
  16. ↑ BGH, decision of February 27, 1992, Az .: 5 StR 190/91
  17. ↑ BGHSt 14, 24
  18. ↑ BGHSt 40, 336
  19. ^ BGH, judgment of April 30, 1968, Az .: 1 StR 625/67
  20. ↑ BGH, judgment of January 12, 1996, 5 StR 756/94
  21. ^ BGH WM 1998, 783
  22. ^ Carsten Kunkel, drafting of contracts , 2016, p. 58
  23. ↑ Gerald Rittershaus / Christoph Teichmann, legal contract design , 2000, p. 76
  24. ↑ Carl Creifelds , Legal Dictionary , 2000, p. 1073
  25. ↑ Heike Jung (Ed.), The criminal process in the mirror of foreign procedural rules , 1990, p. 60
  26. ↑ BVerfG NJW 2007, 500, 501