Accused

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As the accused in Germany and Austria is criminal law a criminal mature person referred to, the commission of an offense is alleged, and therefore against a criminal investigation is being operated. The following references refer to German criminal law.

This article or paragraph presents the situation in Germany . Help us to describe the situation in other countries.

Demarcation

A suspect is a ( natural ) person against whom there is an initial suspicion of a criminal offense ( Section 152 (2) StPO). According to the prevailing opinion, the suspect becomes the accused if he is identified as a suspect (so-called persecution in person ) because of the suspicion of a criminal offense with the will to prosecute (so-called inculpation act of the criminal prosecution authorities) . This combined “formal-material” theory was able to prevail against a purely objective doctrine that automatically linked the accused to the existence of a suspicion and an increasingly subjective view that was mainly based solely on the prosecutor's will to prosecute. The treatment of the person concerned after a change of status (e.g. from simple witness to suspect and then to accused) continues to cause problems, which is particularly evident in "informational interviews" by investigating officers and " spontaneous statements " by the person concerned. Here all prevailing views to justify the accused reach their limits, as they either tie in with rigid standards (e.g. through too early acceptance of an initial suspicion within the meaning of § 152 StPO), or the decision to enter into Make the accused too flexible (e.g. by allegedly denying the will to inculpate in the case of obvious suspicion).

From the completion of the investigation by bringing an indictment of the prosecutor's office or public prosecution suspects are the accused ( § 157 Code of Criminal Procedure 2. Alt.).

The accused becomes the accused ( Section 157 StPO) if the court has decided to open the main proceedings ( Section 203 StPO) or has issued a penalty order ( Section 407 StPO) against him.

right

According to the principle of nemo tenetur se ipsum accusare , the accused is free to enter into the matter or not ( Section 136 (1) sentence 2 StPO). The accused must always be informed about this in the event of an arrest or questioning ( legal hearing ) ( duty of instruction ).

In addition, an opening of the allegation including the criminal law provision as well as the place, time and type of perpetration or Participation take place.

According to § 136 StPO, Art. 6 ECHR , an accused must be instructed about the following:

  • Charge
  • Voluntariness to testify in relation to the matter
  • Right to question a lawyer (defense counsel consultation)
  • Requesting evidence

The accused is allowed to lie within the scope of his self-protection, but as a rule not if this results in other criminal offenses such as the pretense of a criminal offense ( § 145d StGB ), false suspicion ( § 164 StGB) or an offense ( §§ 185 ff . StGB) can be realized. Exceptions were only recognized in cases in which the false suspicion was a consequence of denying one's own perpetration, i.e. when only two people could be considered as perpetrators and the perpetrator denied having committed a crime.

The accused is entitled to consult a defense attorney at any time in the ongoing investigation . In certain cases (so-called "necessary defense") ( § 140 StPO) the court or the public prosecutor's office may even have to appoint one, whether the accused wants it or not. If the accused is prevented from calling in a defense attorney, there is a prohibition on the use of evidence for the statement made in accordance with Article 6 Paragraphs 1 and 3 of the ECHR.

Duties

(An accused must in Germany accurate and complete information to his personal name , birth name , first name (s) of birth , place of birth , nationality , marital status ), his exercised profession and to his home address to make. These data are important for checking reasons for detention . Furthermore, according to § 81b StPO , he must tolerate measures such as the production of photographs or the taking of fingerprints for the purpose of carrying out criminal proceedings or the identification service. Further passive determination obligations result from §§ 81a, 81e ff StPO. An accused also has to obey public prosecutors ( Section 163a (3) StPO) and judicial, but not police, summons.

If the accused refuses, according to § 163b StPO the identification of the person (including a search of the person) or the personal identification procedure are operated and processed for identification and because of a violation according to Section 111 of the Law on Administrative Offenses .

If there are grounds for pre- trial detention ( §§ 112 ff StPO), the accused can be provisionally arrested and brought before the investigating judge.

In a main hearing , the accused , who is then designated as the defendant, is obliged to be present ( Section 230 StPO).

Jurisprudence

  • Interrogation
    • Makes an accused from its Schweiger real use, it must not at the evidence against him utilized are ( BGHSt. 20, 281 VRS 30, 66; BGHSt 20, 298;. OLG Hamm in MDR 1973 870; VRS 46, 143; OLG Celle in VRS 46, 140)
    • According to the prevailing opinion, partial silence can be used against him (BGHSt 20, 298).
  • Defense counsel consultation
    • The duty to provide information on the right to consult a defense counsel does not require that the accused, who does not express a request for a defense attorney, be informed of an existing emergency defense service (connection to BGH StV 1996, 187; BGH StV 2002, 180 f.).

literature

See also

Web links

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

Individual evidence

  1. ↑ Permanent case law since BGHSt 10,8,12; continued u. a. in BGH, ruling v. 07/03/2007 - 1 Str 3/07 = NStZ 2007, 653.
  2. ↑ ZB Kohlhaas, Neue Juristische Wochenschrift (NJW), 1965, pp. 1254, 1255 and Montenbruck, Journal for the Entire Criminal Law Science (ZStW), Volume 89 (1977), pp. 978, 880 ff.
  3. ↑ RGSt 32, 72, 73; Fincke, Journal for the entire criminal law science (ZStW), Volume 95 (1983), p. 920 ff. And Fincke, The justification of the accused status in criminal proceedings: attempt at an inculpation teaching, 1974 (Habil. Munich; unpublished).
  4. ↑ Oliver Harry Gerson: The Right to Accuse . De Gruyter, Berlin 2016, ISBN 978-3-11-048980-4 , pp. 67-103 .
  5. ↑ Oliver Harry Gerson: The Right to Accuse . De Gruyter, Berlin 2016, ISBN 978-3-11-048980-4 , pp. 103-122 .
  6. ^ Roxin / Schünemann: Criminal Procedure Law . 29th edition. CH Beck, Munich 2017, ISBN 978-3-406-70680-6 , p. 193-199 .
  7. ^ Roxin / Schünemann: Criminal Procedure Law . 29th edition. CH Beck, Munich 2017, ISBN 978-3-406-70680-6 , p. 203-204 .