Prohibition of Evidence
Prohibitions of evidence represent constitutional barriers that are placed on the acquisition and utilization of evidence . Such bans exist in numerous rules of procedure. They primarily serve to protect the procedural rights of the parties.
Prohibitions of proof are of particular importance in criminal proceedings . The criminal proceedings are designed to determine the objective-material truth and there is no party process in which, for example, as in civil proceedings or in criminal proceedings in the USA , the procedural truth is important. However, the German Code of Criminal Procedure (StPO), like the regulations of other constitutional states , does not want to research the truth at any price. In German criminal procedural law, a distinction is made between the collection of evidence and the prohibition of the use of evidence.
Prohibition of taking evidence
To in § 244 normalized paragraph 2 Code of Criminal Procedure Principle of investigation , the court of its own motion an inquiry by on the facts. In accordance with Section 261 of the Code of Criminal Procedure (StPO), it generally carries out a comprehensive assessment of the evidence, which requires the evaluation of all evidence. However, the StPO does not demand the establishment of the truth at any price, but rather sets different barriers based on opposing assessments, especially those of the Basic Law . The aim of the prohibition on the use of evidence is in particular to protect the legal position of the accused. To achieve this, procedural law declares certain forms of gathering evidence to be unlawful . In addition, prohibitions on the exploitation of evidence fulfill the function of preventing the law enforcement authorities from violating the law. In contrast to the Anglo-American legal system, this is only of secondary importance in German procedural law, since violations are primarily sanctioned by civil servant law . Finally, some bans of evidence are intended to prevent evidence with questionable informative value from being introduced into the proceedings.
Jurisprudence divides the prohibitions on the collection of evidence into prohibitions on the subject of evidence, prohibitions on evidence, prohibitions on methods of evidence and relative prohibitions on evidence. This distinction is only used for systematization; it basically has no procedural effects.
Prohibition of Evidence
Prohibitions on topics of evidence prohibit the use of certain facts as evidence. This applies, for example, to matters that are subject to judicial secrecy ( Section 43 of the German Judges Act ) or official secrecy ( Section 54 of the Code of Criminal Procedure) as well as to previous convictions that have already been canceled ( Section 51 of the Federal Central Register Act ).
A prohibition of the subject of evidence can also result from the fact that evidence contains information about the private or intimate sphere of the accused. According to Section 100d (5) sentence 1 of the Code of Criminal Procedure (StPO), for example, it is not permissible to collect evidence of information that comes from the core area of private life by means of acoustic monitoring of the living space . Likewise, § 136 StPO may result in a revision hearing prohibiting the use of evidence for facts from the main hearing. A suspect's right to remain silent is also subject to a prohibition on gathering evidence: the refusal to testify must not become a subject of evidence and must not be supported as evidence or evidence of an assumption.
A ban on the subject of evidence can also affect undisputed and established facts for which no further evidence is raised. Pursuant to Section 244 of the Code of Criminal Procedure, applications for evidence can be rejected if the taking of evidence is superfluous because it is obvious, if the fact that is to be proven is irrelevant for the decision or has already been proven. Certain facts are determined ex lege and therefore do not need to be discussed again, which is why corresponding requests for evidence are inadmissible. The Austrian Supreme Court ruled in 1992: “ The Federal Constitutional Lawmaker (...) has made it clear ex lege that the National Socialist genocide and the other National Socialist crimes against humanity in criminal proceedings do not require any further evidence-based discussion, from which it follows that this subject of evidence is beyond evidence . (…) Evidence of these facts is therefore out of the question. “It is therefore impossible to justify denial of the Holocaust by stating that the Holocaust did not exist, and to bring in appropriate expert opinions with this intention. Likewise, the human dignity enshrined in the Basic Law prohibits the use of “expertise” to underpin a hateful assertion about the inferiority of a people. This method has shaped the jurisprudence since the early Middle Ages, albeit with changing (sometimes even completely contradicting) topics.
Prohibition of evidence
One speaks of a ban on evidence if one of the four admissible pieces of evidence , certificate , witness , expert opinion , inspection , may not be used. This applies, for example, to statements made by witnesses who later invoke a right to refuse to give evidence . The principle of immediacy , according to which facts relevant to the decision should flow into the judgments of the courts as directly as possible , leads to a relative prohibition of evidence among the evidence: According to Section 250 sentence 2 StPO, the interrogation may not be carried out by reading out the minutes of an earlier interrogation or a written declaration be replaced. Thus, the personal evidence has priority over the documentary evidence.
According to § 252 StPO, the testimony of a witness questioned before the main hearing may not be read out if he only makes use of a right to refuse to testify during the main hearing . This is to ensure that the right to refuse to testify can effectively fulfill its protective purpose.
Prohibition of Evidence Methods
The ban on evidence methods prohibits certain methods of obtaining evidence. These include the prohibited interrogation methods mentioned in Section 136a Paragraphs 1 and 2 StPO. These include measures that impair the accused's freedom of resolution, such as ill-treatment, torture, hypnosis and fatigue. Measures that impair the interrogated person's ability to remember or understand are also prohibited. Section 136a of the Code of Criminal Procedure applies accordingly to the questioning of witnesses and experts .
Prohibitions on methods of evidence do not relate to formal errors, and they fulfill a double function: on the one hand, they protect the basic rights of the accused and, on the other hand, ensure the material quality of the evidence. For this reason, a defendant cannot subsequently consent to their recovery. For the interrogation methods prohibited by Section 136a StPO, this is expressed in Section 136a Paragraph 3 Sentence 1 StPO. For example, the veracity of a statement made under torture is uncertain and has no evidential value. This defect is not subject to the defendant's freedom of choice; he can at most make a new, proper statement.
Relative prohibition of evidence
Relative bans on the gathering of evidence limit the power to gather specific evidence to specific individuals. For example, in accordance with Section 81a (2) of the Code of Criminal Procedure, only judges, and in the case of imminent danger , the public prosecutor and their investigators , may order a physical examination of the accused.
After evidence is taken, the court will evaluate it. Such an assessment may not be made if the use of the evidence is prohibited. In some cases, the law stipulates that evidence may not be used. In some cases it is linked to the violation of a ban on gathering evidence. Such links are referred to as dependent prohibitions on the use of evidence. In other cases, the prohibition of the use of evidence applies regardless of a violation of the right to collect evidence. Such bans are referred to as independent evidence-gathering bans.
Written prohibitions on the use of evidence
In a few cases, the law explicitly orders the use of evidence. For example, Section 136a, Paragraph 3, Clause 2 of the Code of Criminal Procedure contains an employment ban . This standard prohibits the use of evidence obtained through prohibited interrogation methods. Such methods include, for example, abuse, fatigue, or deception. A consent of the questioned person does not omit the prohibition. According to Section 69 (3) of the Code of Criminal Procedure, the prohibition also extends to statements by witnesses.
Section 51 ofthe Federal Central Register Act stipulates that anentryin the Federal Central Register that has been deleted or is to be deleted regarding a conviction may not be used to the detriment of the accused. In particular, it must not be used as evidence in criminal proceedings. In accordance with Section 81c (3), sentence 5 of the Code of Criminal Procedure, the use of evidence obtained through the investigation of persons other than the accused without their consentis also inadmissible. According to Section 100d Paragraphs 2 and 5 of the Code of Criminal Procedure, evidence in the core area of private life that is obtained in the course of a large eavesdropping attack may not be used. According to Section 108 (2) StPO, incidental evidence found by the doctor about the termination of pregnancy may not be used. Also inadmissible is the use of statements made by certain persons who are entitled to refuse to give evidence under Section 160a (1) sentence 2, 5 and Section 160a (2) sentence 3 of the Code of Criminal Procedure. According to Section 257c, Paragraph 4, Clause 3 of the Code of Criminal Procedure, the accused's confessions may not be used if there is an understanding between the court and those involved in the proceedings.
Section 479 (2) sentence 1 of the Code of Criminal Procedure contains an independent ban on the use of evidence . This standard refers to the prohibition of exploitation established in Section 161, Paragraph 3 of the Code of Criminal Procedure, which stipulates that personal data obtained on the basis of measures that may only be ordered in the event of a suspicion of certain catalog offenses are only used as evidence in such proceedings without the consent of the person concerned which have a catalog act as their subject. This is important, for example, if evidence is obtained in the course of telecommunications surveillance ( Section 100a StPO) that suggests an act that is not a catalog offense according to Section 100a Paragraph 2 StPO. An independent prohibition of evidence also contains § 393 paragraph 2 of the tax code . This standard specifies that evidence obtained from tax files may only be used to prosecute tax crimes. According to Section 97 (1) sentence 3 of the Insolvency Code , information that the debtor provides to the insolvency administrator in insolvency proceedings may only be used in criminal or administrative offense proceedings with his consent.
Unwritten prohibitions on the use of evidence
The legally standardized prohibitions on the use of evidence only regulate individual cases of evidence, which is why jurisprudence recognizes unwritten prohibitions on the use of evidence. However, there is no systematic concept regarding the totality of the prohibitions on the use of evidence. For this reason, it has long been controversial in jurisprudence which criteria are used to determine such bans.
The starting point for determining a prohibition on the use of evidence is the interpretation of the procedural norm that has been violated. Accordingly, not every unlawful gathering of evidence constitutes a prohibition on the use of evidence, but only those for which an interpretation shows that the use of evidence would not be acceptable. In particular, fundamental rights and constitutional principles must be taken into account in the interpretation.
The jurisprudence judged the existence of a prohibition of exploitation for a long time according to whether the disregarded prohibition of collection should protect the legal circle of the accused. This methodology is known as legal circle theory. For example, the Federal Court of Justice decided that a violation of Section 55 (2) of the Code of Criminal Procedure, which stipulates that witnesses must be instructed about their rights to refuse to provide information , does not constitute a prohibition on the use of evidence, since this norm does not serve to protect the accused but rather to protect the witness. There is only a prohibition of evidence if this procedural error is later investigated against the witness himself. His statement may not be used in this process. On the other hand, there is a ban on the use of evidence if, contrary to Section 52 (3) StPO , a witness is not instructed about his right to refuse to testify and testifies in the process due to this violation. If a norm protected the legal circle of the accused, the case law then carried out an overall weighing of the rights of the accused with the public interest in prosecution in order to assess whether there is a prohibition on the use of evidence. Criteria that are of particular importance in the context of this weighing up are the gravity of the offense, the gravity of the procedural violation in the context of the gathering of evidence and the existence of an intentional evasion of the prohibition of gathering evidence. The objection to the legal theory theory was that it did not adequately protect the accused. Therefore, the case law switched to weighing up individual cases: If in a specific case the rights of the accused outweigh the public interest in criminal prosecution, there is accordingly a prohibition on the use of evidence. Some legal scholars accuse the doctrine of balancing of using indistinct criteria that lead to arbitrary results. Hereby arises a hard to looking casuistry .
According to case law, violations of the prohibition of seizure under Section 97 (1) StPO are regularly inadmissible . In contrast, knowledge gained from physical interventions, such as blood sampling, can be used, even if, contrary to Section 81a (1) sentence 2 of the Code of Criminal Procedure, they are not carried out by a doctor. This is based on the fact that this requirement is only intended to protect the physical integrity of the accused, but not his procedural legal status. However, the use of evidence is generally excluded if the investigating authorities disregard a judge's reservation , for example under Section 105 of the Code of Criminal Procedure or Section 81a (2) of the Code of Criminal Procedure. A lack of instruction from the accused also regularly renders the knowledge gained unusable.
Section 252 of the Code of Criminal Procedure also prohibits the use of evidence. According to its wording, this standard only prohibits the reading out of the minutes after refusal to testify, i.e. the collection of evidence. However, a similar statement arises from Section 250 sentence 2 StPO, in which it prohibits the replacement of personal evidence with documentary evidence . Therefore, the case law also regards § 252 StPO as a prohibition on the use of evidence. This comprehensively protects the right to refuse to testify by forbidding the testimony of a witness who later invokes his right to refuse to testify to be introduced into the process by questioning previous interrogators. An interrogation occurs when a person in an official capacity confronts a witness and requests information from him. According to the case law, however, this does not apply to interrogations carried out by a judge in accordance with Section 162 of the Code of Criminal Procedure, since the Code of Criminal Procedure has particular confidence in judicial interrogations in accordance with Section 251 (2) and Section 254 of the Code of Criminal Procedure. Section 252 of the Code of Criminal Procedure applies accordingly to statements made by the witness to his lawyer. Since the prohibition of the use of evidence aims exclusively to protect the witness, he can allow the use of evidence by consent.
Some independent prohibitions on the use of evidence follow from constitutional guarantees. The general right of personality derived from Art. 2 Paragraph 1 and Art. 1 Paragraph 1 of the Basic Law is particularly important here .
Nemo tenetur se ipsum accusare
The principle of nemo tenetur se ipsum accusare is a relevant expression of personal rights for criminal proceedings . According to this, the accused may not be obliged or pressured to incriminate himself. This principle also prohibits the use of evidence that has been collected by circumventing the accused's right to remain silent under Section 136 StPO. This can be done, for example, by appointing an undercover investigator to investigate the suspect and question him about the crime.
The Nemo tenetur principle is explicitly stated in the StPO in Section 55 (1) for the witness and in Section 136 (1) sentence 2 for the accused.
In the case of the hearing trap, private individuals initiate (usually telephone) conversations at the instigation of the investigating authority. The private person tries to focus the conversation on the respective act in order to induce the accused to make statements. The investigative authorities listen to this conversation, which remains hidden from the accused.
This method of investigation has been heavily criticized. The 5th Criminal Senate of the Federal Court of Justice also considered it inadmissible with regard to Section 136 of the Code of Criminal Procedure. This standard can only be inferred primarily that statements made by the accused during his interrogation may not be used if he was not advised at the beginning of the interrogation that he is free to comment on the matter. However, the 5th Criminal Senate was of the opinion that the norm should be applied accordingly, otherwise the accused's right to remain silent would be undermined.
However, the Grand Senate of the Federal Court of Justice ruled against this view in a 1996 decision. An analogous application is not indicated, rather the limit for the use of hearing traps can be found in the general principles of a constitutional procedure. The hearing traps are therefore limited by the accused's right to privacy and the rule of law , which guarantees a fair trial. Since these principles collide with the state's duty to effectively prosecute, which also has constitutional status, the case law weighs up the goods on a case-by-case basis. According to this, knowledge gained by means of an audio trap is only permissible if the aim is to investigate a serious criminal offense and research into the facts using other investigative methods would have been considerably less promising or significantly more difficult.
The Federal Constitutional Court ruled on October 9, 2002 that an interference with the right to privacy can be assumed if there is no tacit consent to allow third parties to secretly listen to the conversation without the consent of all interlocutors, unless all parties object to this as a precaution. Thereafter, the tacit consent is denied if the following prerequisite is met: "If he were aware that a third party is listening, so that evidence is available in a subsequent legal dispute, the speaker could decide anything against the background of his own lack of evidence Refrain from making statements of legal relevance. He could also endeavor to use wording more cautiously, which may become relevant to evidence. Or, for his part, he could ensure that he had his own evidence. Such opportunities to align with the respective communication partner and to behave appropriately to the situation with regard to one's own communication interests are taken away from him if his decision is not made as to who can perceive the communication content directly. "
One problem area is the forced administration of a laxative or emetic in order to extract evidence from the gastrointestinal tract of a suspect (so-called excorporation). These are mainly cases of ingested drug packages . On the one hand, the form of the search for evidence is decisive: it is not forbidden to force the accused to tolerate something in himself passively (blood sampling, x-ray, tomography, ultrasound). It is forbidden, however, to make it an active tool for self-incriminations. (Nemo tenetur principle, see above).
On the other hand, excorporation is a critical and inhumane deterrent. As an encroachment on personal rights or the right to physical integrity from Article 2, Paragraph 2 of the Basic Law, it is not rudimentary justified under the aspect of proportionality , since drug containers are easily damaged and this usually leads to acute intoxication and death of the accused. The possible amount of hidden drugs and therefore regularly relatively low punishment are therefore out of proportion. Evidence can also be secured by permissible passive means of coercion, such as locking in a cell with a toilet without a sewerage network connection. However, the legal problem has not yet been finally clarified. In individual cases, direct protection of life and limb of the person may be required if there are signs of a leaking container or if there is an immediate threat based on medical findings (e.g. x-rays, ultrasound images) and the drug container is released naturally considered to be too risky.
The Grand Chamber of the European Court of Human Rights found in July 2006 that the compulsory use of emetics in the Federal Republic of Germany violated both the prohibition of inhuman or degrading treatment under Article 3 and the right to a fair trial under Article 6 of the European Convention on Human Rights violates.
Protection of privacy
The protection of personality includes ensuring a core area of private life. The jurisprudence differentiates between encroachments on personal rights according to the affected personality sphere: Evidence from the business sphere, the area of social communication, is not subject to any prohibition of exploitation, so that it can be used. Evidence obtained through investigative interventions in the individual sphere can, in principle, be fully utilized. Whether there is a prohibition of exploitation in an individual case depends on a weighing of the protection of privacy with the interests of a functioning criminal justice system. In the area of the intimate sphere, on the other hand, state interventions are generally inadmissible, so that the use of knowledge from this area is inadmissible.
Notes in a diary can belong to the core area of private life and are then unusable. However, if someone keeps records of external events, e.g. B. on the course of the crime committed by him, these records can be used if the interests of the criminal justice system in the investigation of this crime outweigh the interests of the diary keeper worthy of protection (balancing theory). This is only the case for serious crimes. In a decision of June 26, 2008, however, the Federal Constitutional Court ruled that the use of diaries is also permissible in the event of offenses and a prison sentence of only two years and three months.
If someone talks to himself alone, according to the principles outlined above, this is part of the intimate sphere, and the gathering and use of evidence is not permitted. The Federal Court of Justice expressly stated this in 2005. He was referring to the judgment of the Federal Constitutional Court on the large eavesdropping .
The core area of private life also has a media aspect (eavesdropping on telecommunications) and a location aspect (eavesdropping in an apartment). In the first case, state intervention is limited, but still permissible (G-10 law), since communication per se is designed to be disseminated. In the case of an investigation into the home of the accused, wiretapping, unlike a search , has the permanence that deprives him of the last personal possibility of refuge and retreat. This violates human dignity, because every person - including the persecuted - needs this last possibility of retreat. Evidence can only be obtained if the presumption of personal withdrawal can be substantiated and specifically refuted, for example if it is ensured through auxiliary evidence that in an individual situation the accused withdraws for other, namely criminal purposes.
The preparation of the defense by means of meetings, recordings and research is excluded from the collection of evidence. On the one hand, this arises from § 148 StPO in connection with the aspect of the fair trial from Article 6 ECHR and the rule of law from Article 20.3 of the Basic Law as well as the distribution of roles in criminal proceedings, and on the other hand as a situational application of the principles for the core area of private life Contact with the defense attorney is the professional counterpart in the criminal prosecution situation to the protected contact with close relatives.
Technical intervention measures
With the use of technical means, for example for telecommunications surveillance or online searches , accidental discoveries that are not related to the offense, but indicate the perpetration of another criminal offense, are only subject to the rules on hypothetical substitute intervention with regard to the basic right to informational self-determination usable ( Section 161 (3) StPO).
Objection solution of the BGH
If the offense of a prohibition on the use of evidence is fulfilled, according to the case law, this does not necessarily mean that the evidence may not be used in the process. Such a prohibition only arises for certain prohibitions on the use of evidence if the use of evidence in the main hearing is contradicted by the time specified in § 257 StPO, the conclusion of the respective evidence collection. This teaching applies, for example, to the failure to instruct the accused in accordance with Section 136 of the Code of Criminal Procedure and the disregard of the requirements for a measure under Section 100a of the Code of Criminal Procedure. On the other hand, it does not apply to prohibitions of confiscation, since the defense cannot dispose of the confiscated item, unlike, for example, statements that could be disputed.
An objection is unnecessary, however, if the accused has not been instructed in this regard by the court and the accused is not represented by a lawyer. In the case of absolute prohibitions on the use of evidence resulting from violations of Section 136a and Section 252 of the Code of Criminal Procedure, there is, as an exception, no such objection requirement according to case law.
In jurisprudence, the resolution of contradictions is viewed largely critically, as it impose extensive control obligations on the defense counsel or the accused person who has been instructed, which the court should carry out. In addition, it allows evidence obtained in the context of serious procedural violations to be used against the accused.
Remote effect of prohibitions on the use of evidence
It is controversial in jurisprudence how far the consequences of a ban on the use of evidence extend. This question arises in particular if further evidence is discovered on the basis of evidence that cannot be used, which is not subject to any prohibition on the use of evidence and which can therefore be introduced into the process in principle.
In US procedural law, the fruit-of-the-poisonous-tree doctrine states that all evidence obtained as a result of a procedural violation is always prohibited from exploitation. Otherwise there is a risk that the purpose of the prohibition on collecting evidence is undermined.
In German law, adoption of this doctrine is fundamentally rejected both in the case law of the Federal Court of Justice and in the vast majority of legal literature. Only in the case of violations in the context of postal and telecommunications surveillance does the jurisprudence recognize a long-term effect, since it is precisely these regulations that draw the line between the public interest in prosecution and the core area of private life and their restrictions are based on state ignorance. In addition, the existence of remote effects is disputed in the law of evidence. In the opinion of the critics, a blanket long-range effect is not necessary in German law, since the prohibitions of evidence in American law primarily serve to discipline the police . In contrast to the USA, however, in German criminal proceedings, due to the principle of official investigation , the court conducts an independent investigation of the truth. Both this and the public prosecutor's office are obliged to investigate the circumstances which serve to exonerate the accused. Rather, the function of the German prohibitions on the use of evidence is to secure the rights of the accused. The purpose of the disciplining effect of the doctrine can therefore be achieved more effectively in German law through the provisions of criminal and civil service law .
As soon as a prohibition on the use of evidence is accepted, under certain circumstances, use can still take place via the hypothesis developed by the Federal Supreme Court of legitimate alternative acquisition, which has its origins in the clean path theory represented in US case law . This states that it is possible to use the evidence in spite of the existence of an evidence gathering error, if the evidence could also have been obtained through an alternatively possible lawful gathering of evidence. If necessary, however, if the accused is convicted, such evidence gathering errors must then be taken into account in the sentencing in his favor.
- Greco, Luís / Caracas, Christian: Internal Investigations and Freedom from Self-incriminations, NStZ 2015, p. 7 ff.
- Raimund Baumann, Harald Brenner: The criminal procedural evidence prohibitions. Systematic presentation for practice based on the highest court rulings. 2nd revised edition. Boorberg, Stuttgart et al. 2004, ISBN 3-415-03158-6 ( Neue Rechtspraxis ).
- Guido Philipp Ernst: Secret tape recording and prohibition of exploitation . In: JSE . 2013, p. 376–379 ( zeitschrift-jse.de [PDF; 1.5 MB ] Discussion of the BGH decision of October 23, 2012).
- Oliver Kai-Eric Kraft: The nemo tenetur principle and the resulting rights of the accused in police interrogation. A comparative study of American and German criminal procedural law. Kovač, Hamburg 2002, ISBN 3-8300-0583-0 ( series of publications on criminal law in research and practice 6), (also: Regensburg, Univ., Diss., 2002).
- Ricardo M. Alvarez Ligabue: The principle "nemo tenetur seipsum accusare" and the confidentiality of correspondence between lawyer and client in the law on fines in European antitrust proceedings. University of Bonn, 2000 (dissertation).
- Ole-Steffen Lucke: The constitutional prohibition of the use of evidence (note on BVerfG, decision of November 9, 2010, Az .: 2 BvR 2101/09, HRRS 2010 No. 1128 = NStZ 2011, 103), HRRS 12/2011, 527
- Use of evidence in German criminal proceedings via www.juratexte.de (article, PDF ; 72 kB)
- ↑ Doris Brehmeier-Metz: § 261 , Rn. 1. In: Dieter Dölling, Kai Ambos, Gunnar Duttge, Dieter Rössner (eds.): Entire criminal law: StGB - StPO - ancillary laws . 3. Edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-7129-8 .
- ↑ Hans Meyer-Mews: Prohibition of using evidence in criminal proceedings . In: Juristische Schulung 2004, p. 39.
- ^ A b c Werner Beulke: Criminal Procedure Law . 13th edition. CF Müller, Heidelberg 2016, ISBN 978-3-8114-9415-2 , Rn. 454
- ^ A b Klaus Volk, Armin Engländer: Basic Course StPO . 9th edition. CH Beck, Munich 2018, ISBN 978-3-406-71924-0 , § 28 Rn. 6-7.
- ↑ Thorsten Finger: procedural evidence prohibitions - a representation of selected case groups . In: Legal worksheets 2006, p. 529.
- ^ Peter G. Mayr: The law of evidence in Austria . In: José Lebre de Freitas: Law of Evidence in the European Union . Kluwer Law International, 2004, p. 42
- ↑ Peter Rieß: The Code of Criminal Procedure and the Courts Constitution Act: Grosskommentar . Walter de Gruyter, 1999, p. 375
- ↑ Urs Kindhäuser: Criminal Procedure Law . 4th edition. Nomos, Baden-Baden 2015, ISBN 978-3-8487-0604-4 , § 21, marginal no. 139.
- ^ Rainer Hamm: The revision in criminal matters . Walter de Gruyter, Berlin 2010, ISBN 978-3-89949-670-3 , p. 408 .
- ↑ Olaf Klemke, Hansjörg Elbs: Introduction to the Practice of Criminal Defense . Hüthig Jehle Rehm, Heidelberg 2013, ISBN 978-3-8114-4714-1 , p. 143 .
- ^ OGH, Gz. 15Os 1/93 .
- ^ A b c Werner Beulke: Criminal Procedure Law . 13th edition. CF Müller, Heidelberg 2016, ISBN 978-3-8114-9415-2 , Rn. 455.
- ↑ a b Mohamad El-Ghazi, Andreas Merold: The scope of the ban on the use of evidence according to § 252 StPO . In: Legal worksheets 2012, p. 44.
- ↑ BGHSt 22, 219 (220).
- ^ Walter Gollwitzer: § 252 , Rn. 3. In: Ewald Löwe, Werner Rosenberg (Hrsg.): The Criminal Procedure Code and the Courts Constitution Act. Vol. 6th part. 1: §§ 213-255a . 26th edition. De Gruyter, Berlin 2010, ISBN 978-3-89949-485-3 .
- ↑ a b Herbert Diemer: § 136a , Rn. 2. In: Rolf Hannich (Ed.): Karlsruhe Commentary on the Code of Criminal Procedure . 8th edition. CH Beck, Munich 2019, ISBN 978-3-406-69511-7 .
- ↑ Herbert Diemer: § 136a , Rn. 37. In: Rolf Hannich (Ed.): Karlsruhe Commentary on the Code of Criminal Procedure . 8th edition. CH Beck, Munich 2019, ISBN 978-3-406-69511-7 .
- ↑ Urs Kindhäuser: Criminal Procedure Law . 4th edition. Nomos, Baden-Baden 2015, ISBN 978-3-8487-0604-4 , § 21, marginal no. 143.
- ^ A b Daniel Kessing: The usability of evidence in the event of a violation of § 105 Paragraph I 1 StPO . In: Juristische Schulung 2004, p. 675.
- ^ Christian Jäger: § 136a , Rn. 40. In: Dieter Dölling, Kai Ambos, Gunnar Duttge, Dieter Rössner (eds.): Entire criminal law: StGB - StPO - subsidiary laws . 3. Edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-7129-8 .
- ↑ Sabine Slawik: § 69 , Rn. 7. In: Rolf Hannich (Ed.): Karlsruhe Commentary on the Code of Criminal Procedure . 8th edition. CH Beck, Munich 2019, ISBN 978-3-406-69511-7 .
- ↑ Klaus Volk, Armin Engländer: Basic Course StPO . 9th edition. CH Beck, Munich 2018, ISBN 978-3-406-71924-0 , § 28 Rn. 5.
- ↑ Urs Kindhäuser: Criminal Procedure Law . 4th edition. Nomos, Baden-Baden 2015, ISBN 978-3-8487-0604-4 , § 23, marginal no. 44.
- ^ A b Uwe Hellmann: Criminal Procedure Law . 2nd Edition. Springer-Verlag, Berlin 2006, ISBN 3-540-28282-3 , Rn. 479.
- ↑ Klaus Volk, Armin Engländer: Basic Course StPO . 9th edition. CH Beck, Munich 2018, ISBN 978-3-406-71924-0 , § 28 Rn. 8th.
- ↑ BVerfG, decision of May 20, 2011, 2 BvR 2072/10 = Neue Juristische Wochenschrift 2011, p. 2783.
- ↑ Werner Beulke: Criminal Procedure Law . 13th edition. CF Müller, Heidelberg 2016, ISBN 978-3-8114-9415-2 , Rn. 457
- ↑ BGHSt 11, 213 .
- ↑ Wolfram Bauer: Can the criticism of the "right-wing theory" (methodically) still hold up? In: Neue Juristische Wochenschrift 1994, p. 2530.
- ↑ Christian Jäger: Comments on BGH, decision of August 9, 2016, 4 StR 195/16 . In: Legal worksheets 2017, p. 74.
- ↑ BGHSt 38, 302 (304).
- ↑ BGHSt 38, 214 (225).
- ↑ BGHSt 11, 213 (216).
- ↑ Urs Kindhäuser: Criminal Procedure Law . 4th edition. Nomos, Baden-Baden 2015, ISBN 978-3-8487-0604-4 , § 23, marginal no. 13.
- ↑ BGHSt 42, 372 (377).
- ↑ Herbert Diemer: § 136a , Rn. 42. In: Rolf Hannich (Ed.): Karlsruhe Commentary on the Code of Criminal Procedure . 8th edition. CH Beck, Munich 2019, ISBN 978-3-406-69511-7 .
- ↑ Sabine Gless: § 136a , Rn. 75. In: Ewald Löwe, Werner Rosenberg (Hrsg.): The Code of Criminal Procedure and the Courts Constitution Act. Vol. 4. Sections 112-150 . 26th edition. De Gruyter, Berlin 2010, ISBN 978-3-89949-485-3 .
- ↑ Urs Kindhäuser: Criminal Procedure Law . 4th edition. Nomos, Baden-Baden 2015, ISBN 978-3-8487-0604-4 , § 23, marginal no. 17th
- ↑ BGHSt 18, 227 (229).
- ↑ Urs Kindhäuser: Criminal Procedure Law . 4th edition. Nomos, Baden-Baden 2015, ISBN 978-3-8487-0604-4 , § 23, marginal no. 23.
- ↑ Michael Greven: § 97 , Rn. 9. In: Rolf Hannich (Ed.): Karlsruhe Commentary on the Code of Criminal Procedure . 8th edition. CH Beck, Munich 2019, ISBN 978-3-406-69511-7 .
- ↑ BGHSt 24, 125 (128).
- ↑ Ulrich Schroth: Prohibitions of Use of Evidence in Criminal Proceedings - Overview, Structures and Theses on a Controversial Topic . In: Juristische Schulung 1998, p. 969.
- ↑ Gabriele Rose, Olaf Witt: Cases on the prohibition of the use of evidence . In: Juristische Arbeitsblätter 1998, p. 400.
- ↑ BGHSt 2, 99 (101).
- ↑ BGHSt 32, 25 (29).
- ^ Uwe Hellmann: Criminal Procedure Law . 2nd Edition. Springer-Verlag, Berlin 2006, ISBN 3-540-28282-3 , Rn. 444.
- ↑ BGHSt 21, 218, (219).
- ↑ BGHSt 46, 189 (192-195).
- ↑ BGHSt 46, 1 .
- ↑ BGHSt 45, 203 .
- ↑ Urs Kindhäuser: Criminal Procedure Law . 4th edition. Nomos, Baden-Baden 2015, ISBN 978-3-8487-0604-4 , § 23, marginal no. 45.
- ↑ BGHSt 42, 139 .
- ↑ BVerfGE 106, 28 .
- ↑ cf. BGH, judgment of June 19, 1970 , Az. IV ZR 45/69, full text = NJW 1970, 1848; BGH, judgment of December 14, 1990 , Az. V ZR 223/89, full text = NJW 1991, 1180; BAG, judgment of June 2, 1982 , Az. 2 AZR 1237/79, guiding principle = BAGE 41, 37.
- ↑ ECHR decision - Jalloh vs. Germany, July 2006 - Council of Europe Press Division Server.
- ↑ Klaus Volk, Armin Engländer: Basic Course StPO . 9th edition. CH Beck, Munich 2018, ISBN 978-3-406-71924-0 , § 28 Rn. 38.
- ↑ Urs Kindhäuser: Criminal Procedure Law . 4th edition. Nomos, Baden-Baden 2015, ISBN 978-3-8487-0604-4 , § 23, marginal no. 47-49.
- ↑ BVerfGE 80, 367 .
- ↑ BVerfG, decision of February 1, 2006 , Az. 2 BvR 147/06.
- ↑ BVerfG, decision of November 17, 2007 , Az. 2 BvR 518/07.
- ↑ BVerfGK 14, 20 .
- ↑ a b BGHSt 50, 206 .
- ↑ BVerfGE 34, 238 .
- ↑ cf. Dieter Kochheim: Online search and TKÜ sources in the Code of Criminal Procedure - Reorganization of the deep technical intervention measures in the StPO since August 24, 2017 Kriminalpolitische Zeitschrift (KriPoZ) 2018, pp. 60-69
- ↑ a b BGHSt 38, 214 .
- ↑ BGH, decision of August 15, 2000, 5 StR 223/00 = criminal defense lawyer 2001, p. 545.
- ↑ BGH, judgment of October 6, 2016, 2 StR 46/15 = Neue Juristische Wochenschrift 2017, p. 1335.
- ^ Andreas Mosbacher: Current Criminal Procedure Law . In: Legal Training 2017, p. 742.
- ↑ Petra Velten: Comment on BGH, decision of September 11, 2007, 1 StR 273/07. In: Journal for Legal Studies 2008, p. 76.
- ↑ Werner Beulke: Criminal Procedure Law . 13th edition. CF Müller, Heidelberg 2016, ISBN 978-3-8114-9415-2 , Rn. 460a.
- ↑ Mohamad El-Ghazi, Andreas Merold: The contradiction at the right time . In: Höchst Judicial jurisprudence in criminal law 2013, p. 412.
- ↑ Klaus Volk, Armin Engländer: Basic Course StPO . 9th edition. CH Beck, Munich 2018, ISBN 978-3-406-71924-0 , § 28 Rn. 43.
- ↑ BGHSt 27, 355 (358).
- ↑ BGHSt 32, 68 (71).
- ↑ BGHSt 29, 244 (247).
- ↑ Werner Beulke: Criminal Procedure Law . 13th edition. CF Müller, Heidelberg 2016, ISBN 978-3-8114-9415-2 , Rn. 483.