Security (law)
Guarantee is a legal term for different measures in different types of law with different objectives (see below). The aim of all seizures is the transfer of property control to sovereign custody . What they also have in common is the scope of the right of intervention . It is irrelevant whether the owner of actual control over something is the owner or not. The fundamental right to property ( Art. 14 GG ) is interfered with.
Definitions
The guarantee is the justification or bringing about public-law custody of an object. This can be done either by giving or taking them into custody or by applying an official seal .
species
A seizure can be a simple seizure or a seizure . It can be repressive ( prosecution of criminal offenses and prosecution of administrative offenses ) or preventive in nature, like preventive profit skimming .
- A simple seizure as evidence is understood to mean the voluntary transfer of custody to the state for criminal / administrative offense prosecution (repressive seizure) in accordance with Section 94 (1) of the Code of Criminal Procedure ; Example: A suspect hands over exonerating documents to the authorities. If the surrender is voluntary or if the thing to be secured is ownerless, one also speaks of an informal security . One speaks of voluntariness if the person in custody knows that he is not obliged to surrender it.
- The second case of seizure as evidence is regulated in Section 94 (2) StPO. If the person in custody does not want to surrender the items voluntarily, they must be confiscated. This is a formal guarantee , as it entails further measures to be taken, such as applying for judicial review - see Section 98 of the Code of Criminal Procedure. As already mentioned ( Section 94, Paragraph 2 of the Code of Criminal Procedure) , one speaks here of a seizure.
Note: Even if things are voluntarily surrendered, confiscation may be considered, since the criminal protection of Section 136 of the Criminal Code ( breach of entanglement , breach of seal ) is only justified through seizure by seizure .
The seizure may only be ordered by the judge and, in the case of imminent danger, also by the public prosecutor and their investigators (e.g. police officers). It must comply with the principle of proportionality. If it is not ordered by the judge and the accused objects, a court confirmation must be requested within three days. A judge then decides on the seizure / seizure.
The seizure / seizure is part of the criminal and regulatory offense prosecution and is divided into:
- Seizure to secure evidence according to Section 94 , Section 98 of the Code of Criminal Procedure (purpose: securing criminal proceedings against loss of evidence)
- Confiscation for confiscation / forfeiture of the item according to Section 73 , Section 74 ff. StGB
- Confiscation of a driver's license if there is an urgent suspicion of a criminal offense in accordance with § 315c , § 316 , § 142 or § 323a StGB exists and it is to be expected that a decision on the (provisional) withdrawal of the driving license will be made in accordance with Section 94 (3), Section 98 , Section 111a StPO, Section 69 StGB
- Recovery aid according to § 111b ff. StPO
- Confiscation item (prohibited item or prevention of further inspection, e.g. § 21 Paragraph 3 StVG ) - strictly speaking, the latter represents a double-functional measure (repression and defense against danger ).
Procedure
With the securing of the thing, the thing, officially called evidence , is transferred to a sovereign safekeeping relationship and thus "entangled". Violations of this entanglement can be punished as a breach of entanglement ( § 136 StGB) or possibly as a breach of custody ( § 133 StGB).
Under certain conditions, seizures can be enforced by applying administrative coercion or by applying direct coercion . Corpses are considered a thing. Animals are legally treated as things. The equivalent of taking similar action on individuals is arrest , arrest and detention .
Anyone who has an item of the aforementioned type in his or her custody is obliged to present it and deliver it upon request ( Section 95 (1) of the Code of Criminal Procedure). Seizures and seizures can also relate to immovable property. These are marked as confiscated by sealing or fencing them in; Examples: factory hall, apartment, construction site.
Confiscation prohibitions exist for certain objects (e.g. with regard to persons who have the right to refuse to testify ) according to Section 97 of the Code of Criminal Procedure ( StPO) or, in cases under Section 96 of the Code of Criminal Procedure (the present blocking declaration by an authority with regard to files)
Additional requirements are attached to certain seizures:
- the seizure of letters (paper and electronic) addressed to the accused, mail and telegrams according to Section 99 StPO (confiscation of mail)
- the seizure of documents or printed matter in accordance with Section 111m StPO
- the seizure of assets of a person accused of certain serious criminal offenses against whom charges have been brought or arrest warrant has been issued, according to Section 443 StPO (confiscation of property) and a.
Evidence that is no longer relevant to the investigation must be returned to the owner . Objects that have been seized to avert danger should be returned when the reason no longer applies.
A list of the seized items must be made and a copy handed over to the last person in custody ( Section 107 StPO). After the transfer of custody, the object is an evidence object. The unauthorized reversal is punishable in Germany; if the item is considered evidence, a breach of entanglement is possible.
Authorized Representative
Seizures to avert danger and simple seizures to prosecute criminal / administrative offenses according to Section 94 of the Code of Criminal Procedure ( Section 46 of the OWiG ) is only possible through competent and authorized officials (e.g. law enforcement officers ).
Other seizures may generally only be ordered by the judge ( judge's reservation ). In the case of imminent danger, public prosecutors and the investigators of the public prosecutor's office may issue the order or carry it out ( Section 98 (1) sentence 1 StPO), except in the cases under Section 97 (5) sentence 2 StPO - then the order is generally possible by the judge ( Section 98 (1) sentence 2 StPO).
In cases in which an authorized person cannot carry out a seizure / seizure himself, delegation of the execution (with the status of a search assistant) is also conceivable, e.g. B. aggressive abandoned swarm of bees is secured by the fire brigade on order or a door is opened by a locksmith.
special cases
The acceptance of objects in prisons is based on special laws in police law (federal or state) or in the penal code (federal).
See also
literature
- Tido Park: Handbook Search and Seizure . 426 S., Munich, CH Beck, 2002, ISBN 3-406-48932-X
Web links
- Hellen Schilling, Carsten Rudolph and Nicolai Kuntze, Securing electronic data and "selective data deletion" [1]
