Key witness

from Wikipedia, the free encyclopedia

The term key witness comes from Anglo-American criminal procedure law and refers to those witnesses who have been named by the prosecution. Today, in continental Europe as well, those witnesses who testify against the other perpetrators against the promise of mitigation or impunity for their own contribution to the crime are called key witnesses.

Etymology and meaning

The term crown witness is derived from the English expression to give evidence for the Crown (in American English : state ), which in German roughly means “ to give evidence for the crown”. In the British monarchy , the public prosecutor represents the indictment before the criminal court on behalf of the head of state - symbolized by the crown . In addition, the Anglo-American criminal process is designed as a party process (adverse process). The disputing parties are the prosecutor (public prosecutor) and the defense attorney, who have to determine the relevant facts, to find the evidence necessary to prove them and ultimately to present them to the court, while the court itself only has a procedural guide during the taking of evidence Function. The clarification of the facts is therefore a matter for the parties. This also includes naming your own witnesses, who then have to cross-examine the questioning by the opposing party. The key witness is appointed by the prosecutor. His testimony , which is supposed to serve as evidence against the accused , contrasts him with witnesses for the defense, who usually make exonerating testimony.

In the continental European inquisition process , the jurisdiction and responsibility for bringing in and clearing up the evidence essential for the decision lies in the hands of the judging court ( Section 244 (2) of the Code of Criminal Procedure). This has ex officio , i. H. voluntarily to collect the relevant factual material, without having to rely on appropriate evidence initiatives by those involved in the proceedings or being limited by them in clarifying the facts. The main purpose of the inquisitorial model is to research “material truth”. According to the German Federal Constitutional Court, the "duty to research the truth in criminal proceedings" is rooted in the rule of law and is therefore constitutionally indispensable.

Crown witnesses have a particular proximity to the disclosed crime because they are part of a criminal structure, for whose detection the state is particularly dependent on educational and preventive assistance. Offenders who are potentially willing to cooperate are therefore offered an incentive to help solve serious crimes and thus research the “material truth” in order to break open structures, particularly in the area of terrorism and organized crime, including serious economic crime .

If the key witness makes himself available to the public prosecutor and his testimony contributes significantly to the fact that an act can be uncovered, the court grants the key witness in return mitigation of sentence up to and including complete remission . Measures for police witness protection are also possible if a key witness exposes himself to a risk to life, limb, health, freedom or essential assets due to his willingness to give evidence ( Section 1 Witness Protection Harmonization Act ).

Germany

Legal regulation

To combat organized crime was the government Helmut Kohl ( CDU ) by the Act to amend the Criminal Code, the Criminal Procedure Code and the Assembly Law and the introduction of a leniency program on terrorist offenses of 9 June 1989 a temporary leniency in the criminal code was added (the Criminal Code) .

This regulation has been extended several times. After the government was taken over by a coalition of SPD and Greens under Gerhard Schröder , it expired on December 31, 1999. After the terrorist attacks of September 11, 2001 , the then Federal Justice Minister Herta Däubler-Gmelin (SPD) proposed the reintroduction of the leniency program , but this failed due to the resolute rejection of the co-governing Greens .

Under the coalition government made up of the CDU and SPD , a general leniency program was passed that came into force on September 1, 2009. Section 46b of the Criminal Code enables the criminal courts to mitigate the punishment or to refrain from punishment if a perpetrator of a criminal offense, which is threatened with a minimum imprisonment sentence or with life imprisonment, has contributed significantly to an act by voluntarily revealing his knowledge could be detected or prevented in accordance with Section 100a (2) of the Code of Criminal Procedure. However, the perpetrator must reveal his knowledge before the main proceedings against him have been decided.

With effect from August 1, 2013, the regulation was specified to the effect that the disclosed perpetrator knowledge must help to clarify or prevent an act according to Section 100a, Paragraph 2 of the Code of Criminal Procedure that is related to the offender's act ( connectivity ). Statements about completely different offenses are not able to directly reduce the guilt and would, in particular from the point of view of the victim of the "key witness", allow an excessive mitigation of sentences. The privilege of the key witness is only in a comprehensible way in accordance with the principle of guilt-appropriate punishment ( Section 46 StGB) that the relationship between the disclosed act and the act of the key witness is suitable to at least indirectly reduce the level of reproach that the key witness is responsible for whose own act is to be done.

The area-specific leniency program for narcotics offenses ( § 31 BtMG ) was changed accordingly with the new version of § 46b StGB.

Special leniency programs also contain § 153e StPO for certain state security offenses , in the case of the formation of criminal or terrorist organizations § 129 Paragraph 7, § 129a Paragraph 7 StGB and in money laundering § 261 Paragraph 9 StGB.

criticism

Because of the principles applicable in German criminal procedural law, in particular the legality and guilt principles , the few attempts to introduce a leniency program have repeatedly attracted criticism.

However, the possibility of an understanding in criminal proceedings according to Section 257c StPO inserted into the law almost at the same time as Section 46b StGB. While § 257c StPO tries to bring the "deal" into the main public hearing , the leniency notice according to Section 46b (3) of the Criminal Code is exactly the opposite. This is because the mitigation of the sentence only occurs if the perpetrator reveals his knowledge before the main hearing is opened.

Politicians have always justified a leniency program with the state's need to investigate, which arises from the fact that certain types of criminal offenses are committed in such a closed environment that normal criminal investigation methods up to and including the smuggling of undercover investigators are doomed to failure. Examples are criminal offenses in the drug scene , terrorist activities , corruption or so-called organized crime .

The testimony of the key witness, which enables a conviction, is countered by a high legal-political price: the mitigation of the sentence blurs the principle of a uniform, calculable and guilt-appropriate punishment. Since key witnesses are usually consulted in cases of serious criminal offenses, there is also the risk that precisely those criminals who are particularly guilty of being guilty may gain an advantage in terms of sentencing through their testimony that is not accessible to small criminals.

The journalist Heribert Prantl describes the key witness as a "symbolic figure for the mercantilization of criminal proceedings" because he makes justice a commercial object. The term “key witness” is also misleading, since the person in question is not a witness, but an accused .

It is also argued that the seductiveness of a substantial pardon is so strong that offenders are invited to falsely accuse the main defendant in order to gain an advantage. In contrast to an unencumbered witness, an offender appointed as a key witness is free to comment on the matter in question. He also has the right not to incriminate himself on his own behalf.

With regard to German criminal procedural law, it is further criticized that already under current law, cooperation with the investigative authorities can be taken into account to mitigate punishment and therefore there is no legislative need for a leniency program. For example, when determining the penalty according to Section 46 (2) of the Criminal Code, the court takes into account a. the behavior of the offender after the offense.

In game theory, conclusions can be drawn from the prisoner's dilemma about the quality of the statements made by key witnesses, from which the criticism of the credibility of such witnesses can be justified, since they gain an advantage through their willingness to give evidence.

Austria

The trial regulation of §§ 209a, 209b StPO , which came into force on January 1, 2011 and initially limited to December 31, 2016, was extended in January 2017 by five years to December 31, 2021.

The main idea behind the leniency program is the exchange of information used for law enforcement in return for a discount for the leniency officer. In contrast to Germany, however, the Austrian leniency program does not provide for a full impunity for the leniency officer. According to the Austrian concept, the injustice of the offense committed by the key witness is balanced out by the disclosure of another criminal offense to such an extent that the crime committed by the key witness can be dealt with by diversion (§§ 198 ff StPO), i.e. the criminal proceedings against the key witness without a guilty verdict and can be terminated without formal sanctioning.

Switzerland

It should be noted that Swiss legislation does not recognize the term “key witness”.

On the other hand, the press, teaching and parliamentarians use the term to designate legislative bodies and legislative proposals that provide for a reduction in punishment for previously charged parties who contribute to the investigation and punishment of similar offenses through their participation.

Criminal law

The penal code knows with STGB article 260ter number 2 the small leniency program for members of criminal organizations.

The judge can mitigate the sentence if the perpetrator tries to prevent the organization from continuing its criminal activity.

Legislative developments

  • Motion 17.3264 Extension of the small leniency program to terrorist organizations

The motion was accepted in September 2017. The Federal Council is hereby mandated to submit a regulation to the Federal Assembly that relates to members of terrorist organizations.

  • Motion Janiak 16.3735 Introduction of a leniency program

The motion was rejected by the National Council on May 31, 2017. As part of the planned partial revision of the Swiss Code of Criminal Procedure (StPO), the motion also provided for a regulation for the introduction of the key witness in Swiss criminal law. The Federal Council justifies its negative stance by stating that such a far-reaching regulation would, in particular, run counter to the basic concept of equality of rights and the criminal law of criminal liability of the Criminal Code. This could also increase the risk of the judiciary being misled and undermine the willingness to comply. In addition, it was stated that in Swiss practice no specific need for a leniency program was proven. It is also unlikely to be understood by the population if precisely those perpetrators who have committed the most serious crimes and may have killed numerous people can go unpunished through cooperative behavior. It was also objected that the motion demanded a regulation that promised key witnesses a binding agreement in advance.

Antitrust law

The bonus regulation (voluntary disclosure) of antitrust law is also referred to as the leniency notice outside of the legislation. The basis is the Cartel Act KG Article 49a Paragraph 2 and its ordinance, the KG Sanctions Ordinance SVKG Articles 8-14. The articles concern Section 3: Complete waiver of the sanction and Section 4: Reduction of the sanction.

The Swiss Competition Commission WEKO also refers to voluntary disclosure as whistleblowing and operates the whistleblowing website and the reporting form 'Information sheet and form on bonus regulation (voluntary disclosure)' to support it on the Internet.

The beneficiaries of the leniency program are companies and thus legal persons. This differs from criminal law, where the perpetrator is a natural person.

Examples from the United States

witness Tested against Charges Result of the statement
Salvatore "Sammy The Bull" Gravano , mafia killer John Gotti Racketeering Imprisonment reduction to five years and witness protection program
Frank "Curly" Lino ( Bonanno family ) Ron Filocomo Murder of Sonny Black Napolitano ?
"Easy Eddie" "" O'Hare , mobster Al Capone tax evasion ?
Harry Orchard , mass murderer William "Big Bill" Haywood Ex-Governor of Idaho Frank Steunenberg assassinated ?
Jimmy Leibrant, accomplice in a murder Karla Faye Tucker Murder of Jerry Lynn Dean immunity
James Jordan , member of the Ku Klux Klan 18 other Klan members Mississippi Civil Rights Activist Murders Full immunity
Linda Kasabian , driver in the Tate / LaBianca murder Charles Manson and other members of the Manson family multiple murder immunity
Henry Hill , Mafioso Paul Vario and Jimmy Burke Racketeering Immunity and inclusion in the witness protection program
Abe "Kid Twist" Reles , mafia killer Louis "Lepke" Buchalter and members of Murder, Inc. murder no death penalty
Joseph Massino , boss of the Bonanno family numerous members of his organization murder no death penalty

Web links

Wiktionary: Key witnesses  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ^ Albin Eser : Adversatory and inquisitorial procedural models. A critical comparison with structural alternatives in 2014
  2. ↑ Edda Weßlau: Truth and Legends: The Debate on the Adversatory Criminal Trial ZIS 2014, pp. 558-564
  3. ↑ Draft of a Criminal Law Amendment Act - Restriction of the possibility of mitigating sentences in the case of educational and preventive assistance (StrÄndG) BT-Drs. 17/9695 of May 18, 2012
  4. ↑ Act to amend the Criminal Code, the Code of Criminal Procedure and the Assembly Act and to introduce a leniency program for terrorist offenses ( Federal Law Gazette I p. 1059 )
  5. ↑ Nicolas Kneba: The leniency of § 46b of the Criminal Code. Writings on criminal law, Volume 225, Berlin 2011. Duncker & Humblot e-library
  6. ↑ Forty-sixth Criminal Law Amendment Act - Limitation of the possibility of mitigating sentences in the case of educational and preventive assistance (46th StrÄndG) of June 10, 2013 ( Federal Law Gazette I p. 1497 )
  7. ↑ Draft of a Criminal Law Amendment Act - Restriction of the possibility of mitigating sentences in the case of educational and preventive assistance (StrÄndG) BT-Drs. 17/9695 of May 18, 2012
  8. ↑ BGH, judgment of March 20, 2014 - 3 StR 429/13 LS 2
  9. ↑ Alexander Hardinghaus: sentencing for educational and preventive aid. The key witness in German criminal law with special consideration of § 46b StGB. Munich 2014, ISBN 978-3-8316-4425-4 . Zugl .: Diss., Munich, Univ., 2014. Reading sample
  10. ^ Stephan Christoph: The key witness in the criminal code. The investigative aid according to § 46b StGB from a dogmatic and empirical perspective . Writings on criminology Volume 13, Baden-Baden 2019, ISBN 978-3-8487-5224-9 . Zugl .: Augsburg, Univ.-Diss. 2018. Reading sample
  11. ↑ Protection of witnesses in criminal proceedings: On the legal situation in Germany Scientific services of the German Bundestag , status of March 22, 2018, p. 6 f.
  12. ↑ cf. Detailed minutes of the 108th meeting of the Legal Committee of the German Bundestag, public hearing on the draft of a Criminal Law Amendment Act - Restriction of the possibility of mitigating penalties for educational and preventive assistance (StrÄndG) December 12, 2012.
  13. ↑ Heribert Prantl: Key Witness - The Vampire of Justice. In: Süddeutsche Zeitung No. 103/2018 from 5./6. May 2018, p. 23.
  14. ↑ Code of Criminal Procedure 1975, resignation from prosecution due to cooperation with the public prosecutor § 209a Manz legal database , accessed on December 22, 2019.
  15. ↑ Veronika Hofinger: Final Report Leniency Notice. A first study on the trial operation in Austria, on the collection of empirical values ​​and wishes from practice as well as on the creation of a basis for a manual for the Institute for Legal and Criminal Sociology, January 2015.
  16. ↑ Thomas Lübbig: Leniency Notice extended: Public prosecutor and competition authorities intensify cooperation June 27, 2017.
  17. ^ Federal Ministry of Justice : Handbook on Leniency Notice. Sections 209a, 209b StPO in the version of the Criminal Procedure Law Amendment Act II 2016 as of January 1, 2017.
  18. ↑ Andreas Pollak: The new Austrian leniency notice in the Commercial Criminal Law Journal of the Commercial Criminal Law Association WiJ 2017, pp. 90–95.
  19. ↑ Federal Chancellery - P: SR 311.0 Swiss Criminal Code of December 21, 1937 Art. 260ter Criminal Organization. Retrieved July 23, 2018 .
  20. ↑ Motion 17.3264 - Extension of the so-called small leniency program to members of terrorist organizations. In: Official Bulletin. Swiss Parliament, April 6, 2017, accessed on July 23, 2018 .
  21. ↑ motion Janiak Claude 16.3735: Introduction of a leniency program. In: Official Bulletin. Swiss Parliament, September 28, 2016, accessed on July 23, 2018 .
  22. ↑ Karin Frick: Introduction of a Leniency Notice. In: Année Politique Suisse. University of Bern, Institute for Political Science, December 14, 2016, accessed on July 23, 2018 .
  23. ↑ Federal Chancellery - P: SR 251 Federal Act of 6 October 1995 on Cartels and Other Restraints of Competition (Cartel Act, KG). Retrieved July 23, 2018 .
  24. ↑ Federal Chancellery - P: SR 251.5 Ordinance of March 12, 2004 on sanctions in the event of inadmissible restraints of competition (KG Sanctions Ordinance, SVKG) Section 3: Complete waiver of sanctions. Retrieved July 23, 2018 .
  25. ↑ Federal Chancellery - P: SR 251.5 Ordinance of March 12, 2004 on sanctions in the event of inadmissible restraints of competition (KG Sanctions Ordinance, SVKG) Section 4: Reduction of sanctions. Retrieved July 23, 2018 .
  26. ↑ Competition Commission: Whistleblowing. Retrieved July 23, 2018 .
  27. ↑ Competition Commission: Registration forms. Retrieved July 23, 2018 .
  28. ↑ Maas, Peter. Underboss: Sammy the Bull Gravano's Story of Life in the Mafia. New York, NY: HarperPaperbacks. ISBN 0-06-109664-4 .