Wrong name
The Wrong name statement prepared in accordance with § 111 OWiG an offense under German misdemeanor cases only represent, if compared to a "competent authority" takes place in performance of their duties. A commission of the administrative offense is not possible in private traffic.
History and protected legal interest
Section 111 OWiG has taken the place of the deleted Section 360 (1) No. 8 StGB in the old version. The factual situation itself has grown historically and arises from the state's interest in sufficient knowledge of a person's identity in order to be able to properly carry out state tasks. The demarcation from the right to informational self-determination , as developed in the census judgment of the Federal Constitutional Court, is controversial . There it is made clear in particular that although there is a justified interest of the general public in the disclosure of personal data by individuals, this does not include the right to arbitrarily request personal data. Personal details may only be requested in the context of the legally stipulated tasks. This fact was taken into account when the old offense was converted into an administrative offense by the legislature by including the authority of the authority as a condition in the wording of § 111 OWiG.
Offense
Anyone who provides incorrect information to a competent authority , a competent official or a competent soldier of the Bundeswehr about:
- First name
- family name
- Birth Name
- Place and date of birth
- marital status
- job
- Place of residence or apartment or
- nationality
makes or refuses to provide information, acts improperly.
Likewise, pursuant to Section 111 (2) OWiG, anyone who acts negligently ignorant of the authority of the authority, the public official or the soldier is acting improperly.
This administrative offense can only be committed against a competent authority or its officials. An inspection in private traffic is not possible.
If the authority already knows the correct personal details of the person, a later incorrect indication is not punishable. The provision also does not apply if, under the circumstances of the case, the identity of a person has already been established beyond doubt. If a police officer wants to determine the personal details for no reason, § 111 OWiG is also not applicable.
According to case law, the scope of the information to be requested depends on the type and severity of the individual case to be determined. For example, the requirement to provide information on marital status and occupation in the context of the investigation of a minor administrative offense (mostly traffic offenses) is regularly disproportionate and the punishment of false or non-disclosure under Section 111 of the OWiG is rejected.
Section 111 of the OWiG itself does not give rise to an obligation to provide information; it only regulates violations of information obligations under other laws. Furthermore, the request to provide personal data must be formulated with sufficient precision. If the person concerned is only asked for “personal details”, only a complete refusal to provide information can be punished.
First name
It is sufficient to mention the first name if not explicitly asked for all first names.
family name
The family or the married name prefix accompanying name is not part of the name but it belongs in the legal life to the full name, that is important to establish the identity. Therefore this must also be specified. After a name change, the changed name must be given.
Birth Name
The indication of the maiden name is required if it is relevant for establishing the civil status. The form of address (e.g. "woman") is not part of the name.
Special case artist name
A stage name permitted under customary law can be given instead of the correct name if it is sufficient for the unequivocal identification of the person and for the purpose of the investigation.
Birthday and place
The request for birthday and place of birth is only permitted if there is sufficient reason for the inquiry and it is necessary to establish identity. This information is irrelevant in administrative fine proceedings for a building code violation.
marital status
This must be indicated if it is of importance for official determinations (e.g. in the taxation procedure). The parents' name is not part of the marital status.
job
The profession actually practiced to earn a living, and not the profession learned, must be stated here. It is not sufficient to state a secondary job and to conceal the main occupation. In the case of unemployment, the last occupation must be stated.
Place of residence and apartment
The decisive factor here is the actual center of life and which place of residence is specifically requested. In the case of several places of residence, inquiries about all places of residence are permitted. A merely temporary place of residence does not have to be specified. Apartment in this context means the address. If there is no place of residence, the usual place of residence must be indicated. The exception is that soldiers have to indicate their location.
nationality
The question of citizenship is particularly relevant if there are indications of a criminal offense or an administrative offense under the Residence Act and should only be asked if this information is required.
Norm addressees
The standard is basically aimed at all natural persons within the scope of the law ( everyone's paragraph ). However, the circle of addressees of the action of these natural persons is limited.
authority
Authorities within the meaning of Section 111 OWiG are not only authorities in an organizational but also in a functional sense. Thus, all bodies that perform public administration tasks are considered authorities within the meaning of Section 111 OWiG. Courts are also referred to as authorities according to the relevant language usage.
Public officials
This includes all persons who are entrusted with the performance of the tasks of an authority in the above sense.
Bundeswehr soldiers
They have the right to check people in the context of security and security tasks. According to § 4 of the Fourth Criminal Law Amendment Act, this also applies to soldiers or NATO officials within the scope of the law.
Jurisdiction
Responsibility within the meaning of § 111 OWiG is not limited to the general responsibility of the authority or the public official, but also includes the specific legality of the request for information. This regulation of jurisdiction related to the individual case and the factual feature of intentionality implicit in paragraph 1 were controversial in the literature in the past. However, the introduction of Section 111 (2) OWiG alleviated this problem.
Right to refuse to testify
The right to refuse to give evidence does not extend to information that is absolutely necessary to establish identity. The person concerned cannot therefore invoke his or her procedural position. If a person concerned has already stressed himself by stating his or her identity, further - usually more drastic - measures to establish identity must be weighed up. In the literature, rapid identification is given priority here. In the case of the license plate query, there is usually no risk of self-incriminating.
shape
The form of the incorrect information is irrelevant. These can be given in writing or orally. Incomplete information can also be incorrect (omitting part of a double name ) and the name must be spelled correctly. Specifying the name of another person is not permitted, even with their consent.
The refusal to provide information can be due to active action or failure to provide information due to silence. Insubordinate or aggressive behavior is not required. The polite advice that you do not want to provide any information is also a refusal to provide information.
If the incorrect or refused information is provided by a third party during the interrogation and this is approved by the respondent, then there is no administrative offense. If the interviewee causes such difficulties during the interrogation that further interrogation is unreasonable, this is considered a refusal. If the survey was broken off and coercive measures were taken by the official to establish the identity, the violation can no longer be cured through subsequent information. The provision of personal data to establish identity may not be linked to claims by the respondent. The refusal to provide personal data until the condition is fulfilled already fulfills the offense of § 111 OWiG.
Punishment requirements
Relevance of the information
The incorrect or missing information must be relevant for the fulfillment of the tasks of the authorities. Failure to provide or incorrect information about personal data that is insignificant for the authority does not meet the requirements of Section 111 OWiG.
Intent
Section 111 (1) OWiG can only be committed intentionally. If the respondent is wrong about the authority of the public official, Section 111 (2) OWiG applies. There is no room for a mistake in the regulation within the meaning of Section 11 OWiG. A possible factual error exists if the respondent is convinced that the competent authority already has the requested personal data and that he therefore does not answer. If someone negligently neglects to comply with his obligation to provide information, paragraph 2 applies in any case. Since administrative offenses are accusable , punishment is ruled out if the person concerned does not feel any impulse to review his error due to his misconception. In particular, this is the case if the person concerned was not informed of the reason for the interview and therefore had to assume that it was taking place illegally, i.e. without jurisdiction. However, this only applies if the reason for the survey does not already result from the specific life situation. In this case, Paragraph 2 applies. When police officers establish personal details, the literature generally assumes an avoidable error of prohibition.
negligence
Section 111 (2) of the OWiG stipulates that someone who provides false or no information also acts improperly if he is negligently convinced that the authority, the public official or the soldier are not responsible.
Fine
In the cases of paragraph 1, the authority can impose a fine of up to EUR 1,000 and in cases of paragraph 2 of up to EUR 500. The amount of the fine is to be determined in the individual case according to the state's interest in establishing personal details.
Statute of limitations
The limitation period is according to § 31 para. 2 no. 4 OWiG six months.
Competition in standards
According to the subsidiarity clause of Section 19 OWiG, § 111 OWiG is subordinate to more specific regulations, including those of state law such as the relevant provisions of the police laws, or tax law. However, refusal or false information in the context of fine proceedings for other administrative offenses must also be punished. They are also to be punished if the refusal or false information occurs in the course of an act which also fulfills other fines. In such cases, however, conducting a single fine procedure based on Section 111 OWiG is incorrect. The administrative offenses are to be punished in a fine procedure. Multiple punishment of one and the same life situation contradicts the principle ne bis in idem . Section 111 OWiG always withdraws from criminal law provisions.
Administrative authority
The responsibilities for the conduct of fine proceedings for violations of § 111 OWiG are regulated in the corresponding state law regulations. Notwithstanding this, the federal police punish violations under their own responsibility. For this purpose, the Central Fines Office has been set up at the Federal Police Headquarters , which prosecutes and punishes administrative offenses committed in the territorial area of responsibility of the Federal Police throughout Germany.
See also
Individual evidence
- ↑ Celle VRS 53, 458, 460; Rogall, Karlsruher Commentary , No. 15 on Section 111 OWiG
- ↑ BVerfGE 65, 1, 42ff
- ↑ Göhler, Administrative Offenses Law , margin no. 1 and 2 to Section 111 OWiG
- ↑ Göhler, Administrative Offenses Law , margin no. 3 to Section 111 OWiG
- ↑ Düsseldorf OLGSt. S 1 to Section 360 I No. 8 StGB; Hamm NJW 88
- ↑ Göhler, Administrative Offenses Law , margin no. 3 to Section 111 OWiG
- ↑ Göhler, Administrative Offenses Law , margin no. 4 to Section 111 OWiG
- ↑ Göhler, Administrative Offenses Law , margin no. 10 on Section 111 OWiG
- ↑ Göhler, Administrative Offenses Law , margin no. 11 to Section 111 OWiG
- ↑ § 1355 Paragraph 4 Clause 1 BGB
- ↑ Diedrichsen NJW 76, 1172; 94, 1091
- ↑ Göhler, Administrative Offenses Law , margin no. 11 to Section 111 OWiG
- ↑ Göhler, Administrative Offenses Law , margin no. 11 to Section 111 OWiG
- ^ Rogall, Karlsruhe Commentary , margin no. 41 on Section 111 OWiG; however Senge margin no. 14, always the right name
- ^ Rogall, Karlsruhe Commentary , margin no. 44 on Section 111 OWiG
- ^ Brandenburg. JMBL. BB 98, 97
- ↑ Göhler, Administrative Offenses Law , margin no. 12 to Section 111 OWiG
- ↑ Göhler, Administrative Offenses Law , margin no. 13 on Section 111 OWiG
- ↑ Hamm OLGSt on Section 111 OWiG
- ^ LG Lübeck MDR 51, 244
- ↑ Göhler, Administrative Offenses Law , margin no. 14 on Section 111 OWiG
- ↑ Göhler, Administrative Offenses Law , margin no. 14a to Section 111 OWiG
- ^ Düsseldorf VRS 69, 235
- ↑ Göhler, Administrative Offenses Law , margin no. 5 and 6 to Section 111 OWiG
- ↑ § 1 Paragraph 4 VwVfG
- ↑ Section 11 Paragraph 1 No. 7 StGB
- ↑ Göhler, Administrative Offenses Law , margin no. 7 to Section 111 OWiG
- ↑ Section 11 Paragraph 1 No. 2 StGB
- ↑ § 4 and § 5 UZwGBw
- ↑ Göhler, Administrative Offenses Law , margin no. 9 on Section 111 OWiG
- ↑ Celle VRS 53, 458; Rogall, Karlsruher Commentary , margin no. 20f on Section 111 OWiG; and other
- ↑ Göhler, Administrative Offenses Law , margin no. 15 to Section 111 OWiG
- ↑ prevailing opinion
- ↑ Göhler, Administrative Offenses Law , margin no. 17 on Section 111 OWiG
- ↑ Göhler, Administrative Offenses Law , margin no. 18 to Section 111 OWiG
- ↑ Göhler, Administrative Offenses Law , margin no. 19 on Section 111 OWiG
- ↑ Zweibrücken near Göhler, NStZ 81, 57
- ↑ KG DStrR 39, 180
- ↑ Karlsruhe VRS 66,461; RRH 38
- ↑ Göhler, Administrative Offenses Law , margin no. 19 on Section 111 OWiG
- ↑ Göhler, Administrative Offenses Law , margin no. 19 on Section 111 OWiG
- ↑ Rogall, Karlsruhe Commentary . Margin no. 58 on Section 111 OWiG
- ↑ Zweibrücken near Göhler, NStZ 81, 57
- ↑ Göhler, Administrative Offenses Law , margin no. 20 and 21 to § 111 OWiG
- ↑ Göhler, Administrative Offenses Law , margin no. 23 on Section 111 OWiG
- ↑ Göhler, Administrative Offenses Law , margin no. 22 and 26 to § 111 OWiG
- ↑ Göhler, Administrative Offenses Law , margin no. 25 to Section 111 OWiG
