In dubio pro reo

from Wikipedia, the free encyclopedia

The principle in benefit of the doubt ( lat. "The benefit of the doubt"), short- doubt set , is a slogan-like phrase that in criminal a defendant should not be convicted if the court doubts remain about his guilt.

The principle is not standardized in German law , but is derived from Art. 103 Paragraph 2 GG , Art. 6 Paragraph 2 ECHR and from Section 261 StPO . The principle has the status of a right equal to fundamental rights within the meaning of Art. 93 I No. 4a GG . In Austria, on the other hand, the principle that has constitutional status through Art. 6 Paragraph 2 ECHR is also implemented directly in Section 259 Paragraph 3 StPO .

history

The principle addressed in the sentence was already part of the Greek legal conception going back to Aristotle and shaped Roman law . The succinct, proverbial formulation only found the Milanese legal scholar Egidio Bossi (1487–1546) and used it in his treatises. In the German legal area , the phrase 1631 in use today by Friedrich Spee von Langenfeld is documented and taken up and deepened in the Cautio Criminalis , an extensive work against the practice of the prevailing witch hunts at the time .

Application in German law

The principle “In case of doubt, for the accused” is not a rule of evidence, but a rule of decision . It relates to the legal treatment of irresolvable doubts about the existence of the actual prerequisites for constituent elements. The sentence does not tell the court when to have doubts, but only how to decide when it is in doubt. From several possible conclusions from the taking of evidence, the court does not have to choose the most favorable one for the accused (unless there are specific indications), since the so-called principle of free assessment of evidence ( Section 261 of the Code of Criminal Procedure) applies, which means that the court releases each individual piece of evidence may assign a meaning. If the court is convinced of a less favorable conclusion for the accused, it may and must rather use this as the basis for the judgment. The principle “In case of doubt for the accused” is not applied to the evaluation of evidence , but only if there are still doubts after the evaluation of the evidence.

Before the court acquits a defendant according to the principle “In case of doubt, for the accused”, it must clarify the facts ex officio and, even without applications for evidence, exhaust all relevant evidence (principle of official investigation, Section 244 (2) StPO). In the revision of the injury leads the doubts set already on the Sachrüge through to judgment repeal. A procedural objection is not required, since the sentence of doubt is assigned to substantive law.

The principle “In case of doubt, for the accused” is only violated if the judgment itself shows that the court had doubts about the guilt of the accused. This is the case, for example, when two defendants who have committed an act together, but for whom it cannot be determined whose idea was the act, is stated in the judgment: “Since the court was unable to clarify whose idea was the act , it assumes that the defendants had the idea in common ”(the sentence of doubt requires that each of the two defendants assume that he did not have the idea), or if the court based the judgment on estimates rather than concrete findings lays.

Limits

However, the unrestricted validity of the principle of doubt would also create problems. Is certain that the perpetrator carried out either offense A or offense B; however, it cannot be determined with certainty which of the two, if the perpetrator were to speak freely according to the principle of doubt. However, this is prevented by the election determination .

According to the “ iura novit curia ” principle, the principle of doubt does not apply to legal questions. Whether and to what extent it is to be applied to the prerequisites of the process is controversial: While the literature predominantly assumes that the offender must also be able to prove the offender in formal terms, which is why the principle of doubt must be applied, the Federal Court of Justice is at least based on the fact that a distinction is made between the individual process prerequisites must be.

In addition, the principle of doubt is broken by the StGB itself; for example in § 186 StGB. According to this, criminal liability only ceases if the "fact is demonstrably true". So doubts about the truth are at the perpetrator's expense.

criticism

The substantive legal doctrine of the sentence in dubio pro reo indicates that its content is already regulated in the substantive norms of law, in particular of criminal law. Under constitutional law, the principle of reservation of the law applies in general and, for criminal law, the constitutional clause No punishment without law , Art. 103, Paragraph 2, of the Basic Law. Gunther Arzt emphasizes in his "Heretical remarks on the principle in dubio pro reo": "A murderer is" (only) "to whom it will be proven that he has killed a person ...".

Doctor adds that the real problem of the correct understanding of this sentence consists in making a kind of constitutional principle independent: “The more the constitutional law takes on the interpretation, the more the principle becomes isolated and the weaker the awareness of the relativizations of in dubio pro reo with and depending on other design principles of the criminal law system. "

Axel Montenbruck speaks of a strikingly meaningful, but legally banal, and above all a "magic formula" used socio-psychologically. Criminal courts and other decision-makers mainly used the sentence in dubio pro reo to justify the acquittal vis-à-vis the public and the victim if the suspicion of a crime persisted. The accused is often unnecessarily stigmatized. The constitutional sentence “no punishment without law” is sufficient in criminal law.

The principle in dubio pro reo is also viewed critically by Kyriakos N. Kotsoglou. According to his opinion, the acquittal of the accused does not represent the favor of a gracious judge. On the contrary, it is a judgment that maintains the default status (innocence, Art. 6 Paragraph 2 ECHR) of the accused whenever the judge is not sufficiently convinced of his guilt (evidence beyond reasonable doubt, § 244 paragraph 2 in conjunction with § 261 StPO). In order to show this, the author undertakes to question the self-evident nature of the sentence “in dubio pro reo” and to examine it for its validity and logical consistency. By referring to the constant, highest court case law of the BGH and the procedural formula "Proof beyond reasonable doubt", Kotsoglou shows that a contradicting sentence emerges from an allegedly inviolable basic postulate of the application of the law, which u. a. unable to explain which or what kind of doubts may come into consideration. The presumption of innocence is then examined carefully. According to Kotsoglou, the presumption of innocence goes far beyond prohibiting the disavowal of criminal proceedings , namely a kind of savoir-juger. First of all, it is shown that the standard text only contains a temporal specification at first glance ( up to ). Because it would be trivial to mention “that the criminal proceedings and the final criminal judgment are to be understood as a process that takes place over time. Decisions or even criminal proceedings undoubtedly extend in time ”. That is why Kotsoglou proposes a modification, namely to replace the temporal indication “up to” with “unless”: “The accused is to be treated as innocent, unless proof of guilt is provided by law”. Modifying the wording of the presumption of innocence illuminates its contestable structure. It is precisely from this default structure (do A, unless B) that Kotsoglou takes the normative content of the presumption of innocence. The judge must treat the accused as innocent and acquit him, unless he is sufficiently convinced of his guilt. Only then is he authorized (Art. 103 Paragraph 2 GG, § 244 Paragraph 2 and § 261 StPO, Art. 6 Paragraph 2 ECHR) to convict the accused. The question of what the judge should do if he is not convinced of the guilt of the accused is dismissed as meaningless. You have no function in the language game of criminal proceedings.

example

An example of the application of the principle in dubio pro reo is the pistachio ice cream case . The evidence for guilt of the accused were there so little sound, of that federal court there to an acquittal of the accused came.

See also

literature

  • Hanns Engelhardt: § 261 margin no. 56-63. In: Gerd Pfeiffer (ed.): Karlsruhe Commentary on the Code of Criminal Procedure and the Courts Constitution Act with Introductory Act. 4th revised edition. Beck, Munich 1999, ISBN 3-406-42563-1 .
  • Peter Schwabenbauer: The principle of doubt in criminal procedural law. Mohr Siebeck, Tübingen 2012, ISBN 978-3-16-151786-0 .

Web links

Individual evidence

  1. ↑ a b c Wessels , Beulke : Criminal Law General Part , 40th Edition, Rn. 802
  2. ↑ Meyer-Goßner / Schmitt, Commentary on StPO, 60th edition 2017, § 261 Rn. 26; Federal Constitutional Court, decision of August 26, 2008, 2 BvR 553/08 Item 15; Federal Court of Justice, judgment of October 21, 2008, 1 StR 292/08
  3. ↑ Wessels , Beulke : Criminal Law General Part , 40th Edition, Rn. 801
  4. ↑ Wessels, Beulke: Criminal Law General Part , 40th Edition, Rn. 805
  5. ↑ Wessels, Beulke: Criminal Law General Part , 40th Edition, Rn. 804
  6. ↑ Wessels, Beulke: Criminal Law General Part , 40th Edition, Rn. 803
  7. ^ Gunther Arzt : Heretical remarks on the principle in dubio pro reo: Lecture given to the Legal Society in Berlin on November 13, 1996 , p. 5.
  8. ↑ Gunther Arzt: Heretical remarks on the principle in dubio pro reo , pp. 5.f
  9. ↑ Axel Montenbruck : In dubio pro reo from a norm-theoretical, criminal and criminal procedural point of view . Schriften zur Rechtsstheorie, 1985, a. a. 40
  10. ↑ Kyriakos N. Kotsoglou: About the insignificance of the set benefit of the doubt. A grammatical-logical reconstruction of the doctrine of acquittal. In: Journal for international criminal law dogmatics 2014 (1), pp. 31–46
  11. ↑ Kotsoglou, On the meaninglessness of the sentence in dubio pro reo, p. 31 et passim
  12. ^ But Carl-Friedrich Stuckenberg: Investigations into the presumption of innocence. Walter de Gruyter, Berlin et al. 1998, p. 530 ff.
  13. ↑ Kotsoglou: On the meaninglessness of the sentence in dubio pro reo. P. 43 f.
  14. ↑ beck-online.beck.de