Catalog offense

from Wikipedia, the free encyclopedia

Catalog offense , even qualifying offense is called a mainly of a provision of criminal law offense listed in their suspicion that law enforcement even without the knowledge of those concerned about covert criminal investigation measures authorized are.

Criminal offenses are less common in police laws . As far as the collection of data to avert danger through the covert use of technical means is concerned, for example Section 49 (1) BKAG or Art. 45 (1) PAG put “a danger to life, limb or freedom of a person”, “significant legal interests” or for such goods ahead of the general public, "whose threat affects the foundations or the existence of the federal government or a state or the foundations of human existence." § 17 PolG NRW also names the fight against criminal offenses of "considerable importance." According to § 33a BbGPolG On the other hand, the police may only secretly collect personal data if based on factual indications, in particular on the basis of specific information about planning and preparatory actions, it can be assumed that one of the serious crimes named in Section 33a (1) No. 2 a-g will be committed in an organized manner and the measure promises appropriate knowledge to avert this act.

Germany

Legal regulation

Practically significant examples are the catalogs of criminal offenses in Section 100a (2), Section 100f (1), Section 100i (1) of the Code of Criminal Procedure to justify telecommunications surveillance, acoustic surveillance outside of apartments and technical investigative measures for mobile phone devices (so-called silent SMS ) as well as in Section 100b, Paragraph 2, Section 100c, Paragraph 1, No. 1 of the Code of Criminal Procedure for online searches and acoustic surveillance of living spaces .

A serious (Section 100a, Paragraph 1, No. 1 StPO) or even a particularly serious criminal act (Section 100b, Paragraph 1, No. 1 of the Code of Criminal Procedure) is required for the individual investigative measures.

In view of the not inconsiderable nature of the surveillance of telecommunications traffic, which encroaches on the fundamental right of Article 10 of the Basic Law , and the fact that an impairment of the rights of third parties through chance discoveries cannot be ruled out due to the nature of the surveillance measures and the current extent of general telephone use, their general admission of all kinds of offenses. Section 100a of the Code of Criminal Procedure therefore only permits the surveillance of telecommunications traffic for the enumeratively listed crimes and offenses.

The catalog deeds can be classified into certain groups, in particular:

For a long time, crimes against sexual self-determination were not among the catalog crimes . That only changed after a series of child abductions and a public debate about sex offenders. Certain offenses were included in the catalog of criminal offenses in the online search because they are serious not only because of the violation of the legal interest and the threat of punishment, but also because, for example, the sexual abuse of children requires particular information due to the particular difficulty of obtaining evidence.

An initial suspicion based on concrete facts is sufficient; a sufficient or urgent suspicion is not required. However, grounds for suspicion that go beyond vague clues and mere assumptions are necessary, in particular for an order under Section 100a of the Code of Criminal Procedure. The suspicion must be based on an adequate factual basis and be more than insignificant. Circumstances must be present that, after life experience, including criminalistic experience, indicate to a considerable extent that someone as a perpetrator or participant has committed a cataloged crime. It is necessary that the suspicion has already reached a certain degree of concretization and condensation through conclusive factual material. The bodies ordering the measure have a certain margin of appreciation when examining the suspicion .

criticism

Above all, critics complain about the heterogeneity and the continuous expansion of the catalogs. The catalog, which was originally reserved for serious crime and offenses endangering the state, has been expanded over the course of time to include current criminal policy facts without any recognizable dogmatic continuity. In the 1970s, drug offenses came first, then, under the influence of organized crime, property offenses committed by groups and businesses, and finally, after the collapse of Eastern Europe, violations of the Aliens and Asylum Procedure Act. New criminal offenses and sharpening of penalties in substantive law usually resulted in a corresponding expansion of the catalog of offenses in the Code of Criminal Procedure.

According to their basic concept, offenses cannot be classified as serious crime .

Critics also fear that a catalog will be created based on initially plausible examples of the most serious crime, which will enable the law enforcement authorities to intervene in democratic rights such as freedom of the press or the privileges of lawyers, clergy and other trusted persons. Once such a catalog has been established (often against resistance), it can be easily expanded. An example of this is the discussion about the large eavesdropping attack or deportation .

On the other hand, the abuse of social assistance has become a catalog crime in various variants after it was declared a problem of asylum and immigration law. It is similar with the anti-terror laws after the terrorist attack on September 11, 2001 .

In general, the legitimation effect of a catalog of criminal offenses for particularly intensive encroachments on fundamental rights is questioned.

Switzerland

Article 269 (2) of the Code of Criminal Procedure permits monitoring of postal and telecommunications traffic in order to prosecute the crimes listed there. Chance finds to not mentioned therein offenses subject to the jurisdiction of the Federal Court an evidence exclusionary rule .

literature

  • Thomas A. Bode: Covert criminal investigative measures. Series of publications by the Law Faculty of the European University Viadrina Frankfurt (Oder). Munich, 2012. ISBN 978-3-642-32660-8 . contents

Web links

Individual evidence

  1. ↑ Art. 45: Concealed access to information technology systems Police Task Act, GVBl. 397
  2. ↑ § 17: Data collection through the covert use of technical means Police Act of the State of North Rhine-Westphalia, GV. NRW. P. 441
  3. ↑ for example murder, manslaughter or genocide; Forced prostitution and forced labor; State security offenses within the meaning of Section 100a Paragraph 2 No. 1 Letter a of the Code of Criminal Procedure, Section 33a: Data collection through the use of technical means for monitoring apartments Brandenburg Police Act, (GVBl.I / 96, [No. 07], p. 74)
  4. ^ Draft of a law on the restriction of the secrecy of letters, post and telecommunications (law on Article 10 of the Basic Law) (G 10) BT-Drs. V / 1880 of June 13, 1967, p. 11 f.
  5. ↑ Hans-Jörg Albrecht, Claudia Dorsch, Christiane Krüpe: Legal reality and efficiency of the surveillance of telecommunications according to §§ 100a, 100b StPO and other covert investigative measures. Final report. Max Planck Institute for Foreign and International Criminal Law 2005, p. 13 ff.
  6. ↑ Helmut Satzger, Wilhelm Schluckebier (ed.): Criminal Procedure Code 3rd edition 2018, § 100b, marginal no. 11.
  7. ↑ Helmut Satzger, Wilhelm Schluckebier (ed.): Criminal Procedure Code 3rd edition 2018, § 100b, marginal no. 9.
  8. ↑ BGH, decision of August 11, 2016 - StB 12/16
  9. ↑ cf. Holger Niehaus, Heinrich Dörner, Dirk Ehlers , Ursula Nelles (eds.): Catalog systems as restrictions on criminal procedural powers to intervene. Berlin 2001, p. 26 ff. (Overview of all changes from 1971–2000)
  10. ^ Draft of a law on the restriction of the secrecy of letters, post and telecommunications (law on Article 10 of the Basic Law) (G 10) BT-Drs. V / 1880 of June 13, 1967, p. 12
  11. ↑ Gregor Staechlin: § 100a StPO as a seismograph of the recent history of criminal law and criminal procedure. KritJ 1995, pp. 466-477.
  12. ↑ cf. Act to combat illegal drug trafficking and other manifestations of organized crime (OrgKG) of July 15, 1992, Federal Law Gazette I p. 1302
  13. ↑ cf. Law to improve the fight against organized crime of 4 May 1998, Federal Law Gazette I p. 845
  14. ↑ Ralf Neuhaus: The criminal procedural surveillance of telecommunications (§§ 100a, 100b, 101 StPO) , in: Festschrift für Peter Riess , Berlin and New York 2002, pp. 375-411.
  15. ↑ cf. Diana Kohlmann: Online searches and other measures with the use of technology. Significance and legitimation of their use in the preliminary investigation . Nomos-Verlag, 2012. ISBN 9783832973742
  16. ↑ GPS transmitter only for catalog crimes strafprocess.ch, accessed on May 18, 2020.