Mosaic theory

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Mosaic theory is the designation of several principles of interpretation that have been developed in case law, which in a figurative sense refer to the mosaic-like joining of individual parts to form a whole.

Right of a witness to refuse to provide information in criminal proceedings

Jurisprudence

In a decision of May 7, 1987, the Federal Court of Justice (BGH) granted a witness for the first time a right to refuse to provide information in accordance with Section 55 of the Code of Criminal Procedure (StPO), which also extends to those questions whose truthful answer alone could not trigger criminal prosecution but relate to a section in a mosaic-like evidence building and thus could contribute to a burden on the witness.

In 1998 the BGH confirmed this case law. For the right of a witness to refuse to provide information, it is sufficient if he had to provide information on questions that indirectly justify the suspicion against him, even if only as part of a mosaic-like building of evidence .

In 2002, the Federal Constitutional Court joined the mosaic theory, citing the BGH. There is a concrete risk that the witness will reveal to the public prosecutor's office by revealing his (or his) narcotics supplier the (or the) perpetrators of further, even more traceable, offenses of his own, i.e. providing information about "parts of a mosaic-like building of evidence" and thus at the same time potential If he had to provide evidence against himself, it would not be reasonable for him to provide such information.

Assertion

If a witness wants to invoke the right to refuse to provide information under Section 55 StPO with regard to possible "mosaic particles", he or at least his lawyer must be aware that the public prosecutor's office has further information which could then lead to an overall assessment of the witness. Mere guesswork or theoretical possibilities are insufficient to assume such a danger.

The refusal to provide information must be expressly declared. The witness has the option of doing this until his interrogation is complete. After that, he can no longer revoke the statements.

The right under Section 55 of the Code of Criminal Procedure does not exist if subsequent prosecution of the witness is undoubtedly excluded.

Presence of a state secret within the meaning of the Criminal Code

The "mosaic theory" on treason offenses developed by the Federal Court of Justice in its decision of January 12, 1954 (StE 1/53) states that a collection and compilation of a large number of generally accessible and publicly known facts can form a state secret . It does not depend on whether the individual communicated message is a state secret "in isolation", but on whether, together with other messages, it helps the client to gain an overview of a larger complex. This view led to accusations of "public treason" against several editors during the Spiegel affair in 1962 .

With the 8th Criminal Law Amendment Act, which came into force on August 1, 1968, the legislature narrowed the legal definition of state secrecy in Section 93 of the Criminal Code (StGB). However, the identification of state secrets within the meaning of Section 93 of the Criminal Code continues to cause difficulties, especially insofar as they are the subject of press publications.

International private law

In the international civil procedure law of the European Union, the special place of jurisdiction for the unlawful act is judged in certain cases according to the mosaic theory.

According to Art. 5 No. 3 of the EuGVO a. F (Brussels I Regulation) - today Art. 7 No. 2 EuGVO (Brussels I Regulation) - according to the principle of ubiquity, the injured party basically has a right to choose between the place of action and the place of execution of an unlawful act, if these places are not identical are.

On the occasion of defamation by press articles, however , the European Court of Justice ruled that although the plaintiff had a right to vote, all damages could only be sued at the court where the publisher of the publication was established. Other courts are limited to the damage that has been caused in the member state of the court seised (mosaic theory). This is because the courts of the Member State in which the defamatory publication was distributed showed the greatest relevance to the facts.

If the success of the violation occurs in several different places in the case of so-called stray offenses, the responsibility at the place of action for all damage that has occurred is opened, the responsibility at the places of success only insofar as the violation of legal interests occurred at these places.

Critics criticize this fragmentation of responsibilities. Since a plaintiff will in principle try to avoid costly parallel proceedings in several countries, he is de facto dependent on the general place of jurisdiction of Art. 2 EuGVO (place of residence of the defendant). Choosing the place of jurisdiction for success is made so unattractive by the mosaic theory that this achievement of the EuGVO is lost again.

In the case of assertion of a violation of personal rights through publications on the Internet, the (allegedly) injured party can sue for the entire damage in the country of the author or in the country in which the center of his interests is located. Otherwise it stays with the mosaic theory.

The substantive law applicable in the process is basically the law of the crime scene ( lex loci delicti ).

Web links

Individual evidence

  1. ↑ BGH, judgment of May 7, 1987 - 1 BJs 46/86 - 5 I BGs 286/87
  2. ^ BGH, decision of November 13, 1998 - StB 12/98
  3. ↑ BVerfG, decision of February 6, 2002 - 2 BvR 1249/01 para. 24
  4. ↑ Ulf Gutfleisch: State Protection Criminal Law in the Federal Republic of Germany 1951–1968, Berlin 2014, ISBN 978-3-8305-3408-2 , pp. 279–281.
  5. ↑ Richard Schmid: One is amazed what not all state secrets are in Der Spiegel , December 19, 1962
  6. ^ Test for freedom of the press: The "Spiegel Affair" 50 years ago Deutschlandfunk , October 26, 2012
  7. ↑ Ulf Gutfleisch: State Protection Criminal Law in the Federal Republic of Germany 1951–1968, Berlin 2014, ISBN 978-3-8305-3408-2 , p. 326.
  8. ↑ Jan-Hendrik Dietrich: Reconstruction of a state secret. RW Journal for Legal Research 2016, pp. 566–596
  9. ↑ Stefan Leible : International Civil Procedure Law 2013, pp. 30–32
  10. ↑ dejure: Art. 7 EuGVO. Retrieved on July 5, 2019 (German).
  11. ↑ Fiona Shevill and Others v Presse Alliance SA , Case C-68/93
  12. ↑ ECJ Coll. 1995 I, p. 415, Rn. 33
  13. ↑ Özge Katirci: The culpa in contrahendo in the jurisdictional order of the Brussels I Regulation (Brussels I) Göttingen, 2015
  14. ↑ ECJ Case C-509/09 and 161/10 - eDate Advertising