Criminal Procedure Law (Germany)

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In Germany, the basis for criminal proceedings (also called criminal proceedings ) is the Code of Criminal Procedure (StPO); it is not a regulation but a formal law created in the 19th century. The StPO has more than 400 paragraphs. The criminal process runs according to certain principles ( process maxims ), including the legality principle and the official maxim . In the oral hearing in front of the court, the principle of public disclosure and the principle of oral existence also apply , unless the proceedings are terminated by a penalty order .

The criminal process in the broader sense is divided into the judgment process and the enforcement process . The cognitive process, in turn, is divided into three phases;

  1. Preliminary investigation ,
  2. Intermediate proceedings and
  3. Main proceedings .

The criminal procedure itself is divided into five stages. The first three of these are the phases of the decision-making process, the fourth stage is the appellate instance with appeal and revision. Since the appeal is designed according to cognitive principles with the taking of evidence, it is part of the cognitive procedure by definition. The fifth and final stage of the process is the execution of the judgment.

Legal sources

Regulations relevant to criminal procedural law are contained in several laws. The central source of law is the Code of Criminal Procedure (StPO) with its introductory law . It is partly overlaid by the Youth Court Act (JGG), which contains special provisions for criminal proceedings against young people. The Courts Constitution Act (GVG) and its Introductory Act contain provisions on the structure and jurisdiction of the courts and on the structure of the public prosecutor's office.

The Basic Law (GG) contains elementary basic principles of the German legal system, which are also important for criminal procedure law. In addition to the basic rights, this includes the rule of law laid down in Article 20, Paragraph 3 of the Basic Law and the procedural regulations. The European Convention on Human Rights (ECHR) acts as a treaty under international law in the German legal system. Article 6 of the ECHR is particularly important for criminal procedural law, as it defines numerous rights of the accused. Finally, the Criminal Code (StGB) contains some procedural regulations, for example with regard to the criminal complaint and the statute of limitations. The guidelines for criminal and administrative fine proceedings (RiStBV) are also important as administrative regulations for the activities of the public prosecutor's office .

Principles of criminal procedure

aims

Criminal proceedings have three main objectives: establishing the truth, the rule of law and legal peace . The process is used to establish the truth. For this purpose, the facts of the process are clarified as comprehensively as possible in the process in order to enable a materially correct decision. The course of the procedure should proceed under the rule of law. For this purpose, the procedural regulations provide for precautions to protect the rule of law, such as the guarantee of the right to be heard ( Art. 103 Paragraph 1 GG) and the right to a legal judge ( Art. 101 Paragraph 1 Sentence 2 GG). Finally, the purpose of the procedure is to promote legal peace. For this purpose there is a final decision at the end of the procedure.

Principles

Criminal procedural law is characterized by several maxims that determine its basis.

Official principle

The official principle states that it is the sole responsibility of the state to initiate and carry out the criminal proceedings ex officio; According to Section 152 (1) StPO, this state monopoly of indictment is exercised by the public prosecutor. This differs from civil proceedings in that the disposition maxim applies, i.e. the scope of the judicial proceedings is determined by the parties.

The official principle is limited by the complaint offenses , the prosecution of which requires the filing of a criminal complaint. A distinction is made between the absolute and the relative claim offenses. For the former, which include trespassing ( Section 123 StGB), an application is always required. In the case of the latter, an application is not necessary if the public prosecutor assumes a particular public interest in the prosecution; this is possible in accordance with Section 230 (1) Sentence 1 StGB in the case of bodily harm ( Section 223 StGB). The same applies to authorizing crimes , the prosecution of which requires authorization by a state body. This is the case, for example, with the denigration of the Federal President ( Section 90 of the Criminal Code). A further limitation of the official principle is the private action. According to § 374 StPO, the person injured by a criminal offense can bring criminal charges without the involvement of the public prosecutor for certain offenses that typically affect the public interest to a small extent.

Accusation principle

The accusation principle states that a criminal offense may only be investigated in court if and to the extent that it has previously been charged by the public prosecutor's office. Historically, this represented the departure from the inquisition principle, according to which the prosecutor and judge were identical, which carried the risk of the judge's bias. The accusation principle is expressed in several regulations: According to § 151 StPO, the opening of court proceedings is conditional on the filing of a lawsuit. Section 155 of the Code of Criminal Procedure stipulates that the application specifies the scope of the proceedings, which is why the judgment according to Section 264 (1) of the Code of Criminal Procedure can only refer to the offense specified in the indictment.

Principle of legality

According to the principle of legality, the law enforcement authorities are obliged to initiate investigative proceedings as soon as they become aware of a possible criminal offense. So they have no discretion in this regard . For the public prosecutor's office, this results in an obligation to bring charges, provided the conditions are met. This is a consequence of the public prosecutor's monopoly of charges under Section 152 (1) of the Code of Criminal Procedure. According to Section 163 (1), sentence 1 of the Code of Criminal Procedure, the police are required to investigate.

The obligation to take action exists without restriction if knowledge of the matter has been obtained for business purposes. If a public official gains sufficient knowledge privately, the prevailing view is that there is an obligation to act to protect his personal rights only in relation to serious criminal offenses.

It is controversial in jurisprudence whether the public prosecutor is bound by the highest court rulings. The overwhelming opinion is that this is true, since otherwise the unity of the legal order would be threatened. According to another opinion, there is no such binding, since the public prosecutor's office is independent according to § 150 GVG. Only decisions of the Federal Constitutional Court are binding, since only these have the force of law in accordance with Section 31 (2) of the Federal Constitutional Court Act.

The principle of legality is broken by the possibility for the public prosecutor to discontinue proceedings for reasons of opportunity.

Investigation principle

The principle of official investigation states that the investigation in criminal proceedings is ex officio . This represents a significant difference to civil proceedings , in which the principle of negotiation applies, i.e. the parties have to introduce the facts relevant to the decision into the process.

Principle of immediacy

Furthermore, the principle of immediacy applies in criminal proceedings. According to this, all relevant facts must be determined immediately by the court in the main hearing. This is related to the orality principle .

Procedure

The criminal procedure is divided into the investigation procedure and the enforcement procedure.

Cognitive process

In the investigation procedure, it is determined whether a person is guilty of committing a criminal offense. It is divided into the preliminary, the intermediate and the main proceedings.

Preliminary investigation

In the preliminary investigation (also: preliminary proceedings), the public prosecutor's office examines whether there is any reason to bring a public complaint. In the case of private litigation ( §§ 374 ff. StPO), this check is not necessary.

introduction

The principle of legality set out in Section 152 (2) of the Code of Criminal Procedure stipulates that the public prosecutor's office is generally obliged to commence investigations if it has sufficient factual evidence of the existence of a criminal offense, i.e. if it has initial suspicions. The generation of initial suspicions begins with the investigation of facts that suggest the existence of a criminal offense. The assessment of the factual material depends largely on criminal experience; Therefore, the acting officials have a court limited verifiable discretion . The suspicion need not be directed against a specific person, which is why an investigation against unknown persons is also possible.

The necessary knowledge can be obtained in two ways: by filing a criminal complaint or filing a criminal complaint with a criminal prosecution authority and by ex officio perception of the facts.

A criminal complaint is the communication of a matter which, from the point of view of the complainant, gives rise to an investigation. According to Section 158 Paragraph 1 Clause 1 of the Code of Criminal Procedure, reports can be submitted orally or in writing to the public prosecutor's office, the authorities and officers of the police service and the local courts. All of the named authorities are obliged to accept the notification. Private individuals are required by law to report particularly serious crimes in accordance with Section 138 of the Criminal Code. By contract, for example, private individuals may be required to report criminal offenses in order to maintain their insurance cover. In the criminal complaint, a distinction is made between the application in the broad sense and the application in the narrow sense. A criminal complaint in the broad sense represents a complaint that also contains the request to start an investigation. In a narrow sense, the term criminal complaint describes a process requirement for the prosecution of certain offenses: In certain cases, for example the theft by family members ( Section 247 of the Criminal Code), the start of the investigation is dependent on a criminal complaint , which is usually the case in accordance with Section 77 (1) of the Criminal Code only the injured person can provide and which, according to § 77b StGB, can only take place within a period of three months. For the criminal application in the narrow sense of the word, there are additional formal requirements in accordance with Section 158 (2) StPO.

A law enforcement authority is officially aware of, for example, an investigation into another criminal offense through its own observations by its employees.

If the public prosecutor's office either does not investigate at all or only insufficiently, the injured party can initiate a so-called enforcement procedure.

course

The course of the preliminary investigation is directed by the public prosecutor's office, which in legal science is called the mistress of the preliminary investigation. Therefore, it makes the decision on the existence of sufficient suspicion. In order to be able to assess this, it determines all burdensome and exonerating circumstances in accordance with Section 160, Paragraph 2 of the Code of Criminal Procedure, and therefore tries to provide a comprehensive and objective clarification of the event. To do this, she often uses the police as an investigator , who hears potential witnesses and secures evidence . In fact, the investigation process is usually in the hands of the police, at least in cases of minor and medium-sized crime. In larger process, in particular methods of economic crime, the prosecutor leading the investigation in many areas even itself. To have a lot of public prosecution , for example, its own Wirtschaftsprüfgruppen with correspondingly preformed experts and auditors. In earlier times, however, the public prosecutor's office was directly involved in almost all investigations, usually through officials on site. Therefore, the investigators used to be referred to as auxiliary officers of the public prosecutor's office, as they were only assigned one auxiliary competence, which over time became more and more the standard competence.

According to § 163a basically Code of Criminal Procedure, the accused must be before the end of the investigation interrogated are. According to the predominant formal concept of interrogation, an interrogation presupposes that a public official approaches the accused in an official capacity and requests information.

If the police think they have completed their investigation, the public prosecutor will start work. If she still sees a need for investigation, she can pursue her own investigative approaches, apply to the court for measures such as a house search , seizure or telephone surveillance , or instruct the police to carry out further investigations. The StPO contains numerous bases for intervention by the law enforcement authorities. Section 161 (1) of the Code of Criminal Procedure and Section 163 (1) of the Code of Criminal Procedure contain general investigative clauses for the public prosecutor's office and the police on which all measures can be based that do not require a more precise legal basis due to the lack of a serious violation of fundamental rights, such as the use of informants. Interventional measures usually require an order from an investigating judge . This is the case, for example, with a search ( Section 105 StPO). The investigating judge can also receive confessions and conduct interrogations.

graduation

Once the public prosecutor's office has completed the investigation, it will decide whether to discontinue the proceedings or whether to bring charges . This also largely corresponds to the application for a penalty order .

A discontinuation comes into question if there is no sufficient suspicion ( Section 170 (2) of the Code of Criminal Procedure), the case is not of public interest ( Section 376 of the Code of Criminal Procedure) or considerations of opportunity (e.g. Section 153 , Section 154 of the Code of Criminal Procedure) speak in favor of it. Then the person injured by the act can obtain an indictment through successful enforcement proceedings ( Section 172 StPO) .

Pursuant to Section 170 (1) of the Code of Criminal Procedure, the public prosecutor's office is obliged to bring charges if the investigations provide sufficient grounds for the public charge to be brought. According to § 203 StPO, this applies if the conviction of a person appears likely, i.e. if there is sufficient suspicion. The prosecution has two functions: on the one hand, it designates the accused and thus determines the subject matter of the proceedings; on the other hand, it informs the accused of the charge.

Intermediate proceedings

When the charges are brought, the interim proceedings are initiated. The accused is now referred to as the accused in accordance with Section 157 Alternative 1 StPO . The interim procedure is regulated in § 199 - § 211 StPO. In the interim proceedings, the court checks whether the indictment gives rise to sufficient suspicion within the meaning of Section 170 StPO. This is to prevent the accused from being unnecessarily exposed to the main public hearing. In order to better clarify the matter, the court can order individual evidence to be taken ( Section 202 of the Code of Criminal Procedure), such as hearing or having witnesses heard who have not yet been heard. It is also possible to question witnesses who have already been heard or the accused on questions that have not yet been asked. In principle, the court can order or carry out all investigations in interim proceedings which the public prosecutor's office could have carried out before the public charges were brought; to searches and seizure of evidence. A psychiatric report on the culpability of the accused is often obtained in interim proceedings because the previous file content gives rise to doubts.

If the court considers the accused to be sufficiently suspect, it allows the indictment in accordance with Section 203 of the Code of Criminal Procedure through an opening order. If the court deems another person to be factually competent, it opens proceedings in accordance with Section 209 of the Code of Criminal Procedure before the latter. In cases under Section 205 of the Code of Criminal Procedure, the court can temporarily suspend the proceedings. If the court rejects the opening of the main proceedings according to § 204 StPO by decision, the public prosecutor's office can lodge an immediate complaint against this . The opening is to be refused for actual reasons if, in the opinion of the court, there is no sufficient suspicion. It is to be rejected for legal reasons if, in the opinion of the court, the offense against which the accused is charged does not comply with any criminal law. If the act described in the indictment does not comply with any criminal law, it can nonetheless be prosecuted from the point of view of an administrative offense. In this case, the court does not reject the opening, but rather opens the proceedings because of the regulatory offense.

Main proceedings

In the main proceedings (§§ 213–275 of the Code of Criminal Procedure) the formal name for the accused changes from " accused " to " accused ". The core of the main proceedings is the main hearing (§§ 226–275 StPO). For constitutional reasons, the main hearing in criminal proceedings is usually public ( Section 169 GVG). Exceptions arise from §§ 170, 171a – 172 GVG. These state that the public is to be excluded if:

Incidentally, juvenile justice sessions are not public unless the accused is an adolescent . This applies to the entire hearing including the pronouncement of the judgment, § 48 JGG. With regard to the exclusion of the public, § 174 GVG regulates, among other things, that the exclusion of the public is only negotiated at the request of one of the parties involved or if the court considers it appropriate.

procedure

The main hearing is essentially regulated in Section 243 of the Code of Criminal Procedure: It begins when the matter is called . The court then determines whether those invited have appeared. Then the witnesses are instructed about their duty of truth and, at the request of the court, take a seat outside the conference room. The accused will then be questioned personally (name, birthday, address, nationality). The representative of the public prosecutor's office then reads out the indictment in the indictment . Then the questioning of the accused begins, if he wants to get involved despite being informed about his right to remain silent . The hearing is the task of the chairman; The other parties involved in the process, however, have the right to ask additional questions afterwards and not to hear the accused himself again, especially since the court must investigate the facts as fully as possible on its own initiative.

In accordance with Section 244 (1) of the Code of Criminal Procedure, evidence is then taken . To establish the truth, documents are read out here, facts (or photos) are “inspected” (viewed) and witnesses and experts are questioned . It also applies to the questioning of witnesses that it is initially the task of the chairman; however, the other participants may then ask additional individual questions. For the taking of evidence, the judicial notification and clarification obligation according to § 244 paragraph 2 StPO applies . After each gathering of evidence , the accused must be asked whether he has anything to explain ( Section 257 of the Code of Criminal Procedure). The other parties involved can also make statements, but they must not anticipate the final presentations, which of course is often a difficult problem of delimitation. The judge then closes the taking of evidence, unless the public prosecutor or the accused make further requests for evidence .

In accordance with Section 258 of the Code of Criminal Procedure (StPO) paragraph 1 of the Code of Criminal Procedure (StPO), this is followed by the closing lectures, which begin in the first instance with the pleading of the public prosecutor and in the appellate instances with the pleading of the appellant. In then speaks Apart from legal proceedings of the plaintiffs or their representative, then to all methods of defense or the defendant himself. Finally, the defendant is in the youth criminal proceedings also the guardians or legal representatives, the last word given ( § 258 , paragraph 2, 3 StPO). In juvenile criminal proceedings , the juvenile court assistance is heard before the defense counsel . After the last word, the court withdraws to deliberate on the judgment. After another call, it reads out the sentence, which reads for acquittal or conviction , and gives an oral justification for the sentence. Finally, there is an instruction on legal remedies. The first instance is now complete. Is inserted within a week not on the part of the public prosecutor or the defendant's appeal, the judgment arises in legal force and enforced.

In deviation from this strictly regulated procedure, a main hearing can end prematurely at any time by terminating the proceedings . A judgment is not necessary in such cases. These are usually recruitments for minor guilt ( § 153 StPO), against conditions ( § 153a StPO) or with regard to other proceedings or already pronounced penalties ( § 154 StPO). These attitudes usually require a corresponding application by the public prosecutor and the consent of the accused.

Minutes of the meeting

Section 271 of the Code of Criminal Procedure stipulates that minutes of the main hearingmust be kept, which record the course and results. The minutes serve as evidence: According to § 274 sentence 1 StPO, the formal proper course of the main hearing can only be proven by the minutes. The correctness of the protocol is presumed, which is why everything noted in the protocol is deemed to have taken place (positive evidential value). At the same time, what is not noted in the protocol is not considered to have taken place (negative evidential value). According to § 274 sentence 2 StPO, the presumption can be shaken by the fact that the falsification of the protocol is proven. In addition, the presumption of conformity is invalidated by the fact that the protocol is obviously incomplete or contradictory or describes a process that, according to general experience, actually cannot have happened. The latter was accepted by the case law, for example, in which the public defender of the defendant had left without authorization according to the protocol and the defendant then remained undefended, which was not noticed by anyone involved. Finally, the secretary can correct the minutes. Contrary to the earlier case law, the prevailing view is that this can also remove the basis for a procedural complaint that has already been made.

Enforcement proceedings

Then the enforcement process begins. This is regulated in §§ 449 ff. StPO. The public prosecutor's office is the master of the enforcement proceedings. The statute of limitations begins with the legal force.

Evidence

According to Section 244 (2) of the Code of Criminal Procedure, the court investigates the facts ex officio. For this purpose, it basically determines all the facts that are important for the assessment of the facts and, in accordance with Section 261 of the Code of Criminal Procedure, carries out a comprehensive assessment of the evidence, which requires the evaluation of all evidence. A distinction is made between main, indicative and auxiliary facts. Main facts directly concern a characteristic of a statutory criminal offense. Such is the case, for example, that something has been taken away ( Section 242 of the Criminal Code). Indicative facts are circumstances from which the existence of a main fact can be concluded. For example, the fact that something is in the defendant's possession is an indication that he has taken it away. Finally, auxiliary facts contain a statement about the evidential value of evidence.

The procedural law differentiates between the strict evidence procedure and the free evidence procedure. The strict evidence procedure is intended for gathering evidence relating to guilt and legal consequences of the offense. Only legally stipulated evidence comes into question: the expert, the witness, the inspection, the document and the statement of the accused. The free evidence procedure can be used for other gathering of evidence, such as compliance with procedural law.

There is no need to prove a fact if it is obvious. This applies if it is either known to every understanding person or the court has found it out in an official capacity.

Request for evidence

The taking of evidence can be influenced by those involved in the proceedings by means of requests for evidence . A request for evidence is a request that certain evidence be taken. A request for evidence consists of a factual assertion and the specification of evidence from the strict evidence procedure. According to the prevailing opinion, the application must also show why the evidence is suitable to prove the allegation.

The application for evidence can be made until the judgment is announced. In principle, the application must be submitted orally.

A request for evidence can be linked to a procedural condition. An auxiliary evidence request is made as an alternative, for example, if a different litigation situation occurs than that expected by the applicant.

The court may only reject an application for evidence under the conditions prescribed by law. In this regard, the law distinguishes between present ( Section 245 (2) StPO) and non-present (Section 244 (3–5) StPO) evidence. Rejection is mandatory for both groups if the taking of evidence is inadmissible due to a violation of a prohibition of evidence . A rejection is possible if the fact is obvious or insignificant, if the evidence is completely unsuitable or inaccessible and if the evidence is to be abducted.

Prohibition of Evidence

Prohibitions of evidence represent constitutional barriers that set limits to the acquisition and utilization of evidence. They primarily serve to protect the procedural rights of the parties. The StPO does not demand the establishment of the truth at any price, but rather sets different barriers based on opposing evaluations, in particular those of the Basic Law. In addition, prohibitions on the utilization of evidence fulfill the function of preventing law enforcement authorities from violating the law. In contrast to the Anglo-American legal system, this is only of secondary importance in German procedural law, since violations are primarily sanctioned by civil servant law . Finally, some prohibitions are intended to prevent evidence with questionable informative value from being introduced into the proceedings.

In jurisprudence, a distinction is made between prohibitions on collecting evidence and prohibitions on the use of evidence. Prohibitions on gathering evidence prohibit certain forms of gathering evidence. Such a prohibition is, for example, the prohibition on replacing personal evidence with documentary evidence according to § 250 sentence 2 StPO. Prohibitions on the use of evidence prohibit the use of evidence in the process. Such bans can result from a violation of a ban on gathering evidence - then it is an dependent ban - or it is detached from it - then it is an independent ban.

Appeal

The StPO contains two forms of legal remedies: the ordinary and the extraordinary.

Ordinary Remedies

Ordinary legal remedies include appeal , revision and complaint .

Appeals and revisions can be lodged against a judgment. With the appeal of the appeal, everything can be "rolled up" again in a further factual instance; the revision can only check whether the substantive law or the procedural law has been applied correctly. Appeals are generally only permitted against judgments of the local courts (single judges or lay judges ); the first-instance judgment of the District Courts, also responsible for capital offenses Circuit Court chambers and the Courts of Appeal shall lie only with the appeal of revision, will decide on whether the Federal Court. An appeal to the Higher Regional Court is given against appeal judgments by the regional courts. Appeal and revision have suspensive and devolving effects .

The complaint is directed against decisions and judicial orders. The complaint only has a devolution effect.

Extraordinary Remedies

Extraordinary legal remedies are the reinstatement in the previous state and the resumption of the proceedings .

According to Section 44 StPO, anyone who was unable to meet a deadline through no fault of their own can submit an application for reinstatement . As a result, the missed deadline is cured and the proceedings are continued.

An application for retrial can be made to correct a final judgment. This is possible if there is a reason for reopening that justifies the breach of legal force. Reasons for reopening in favor of the accused are mentioned in § 359 StPO, § 79 of the Federal Constitutional Court , reasons against the accused in § 362 StPO. If the request for reopening is admissible and justified, a new main hearing will take place.

literature

  • Gerhard Schäfer, Günther M. Sander: The practice of criminal proceedings . Kohlhammer, Stuttgart 2007, ISBN 978-3-17-019782-4 .

Textbooks

  • Werner Beulke: Criminal Procedure Law . 13th edition. CF Müller, Heidelberg 2016, ISBN 978-3-8114-9415-2 .
  • Uwe Hellmann: Criminal Procedure Law . 2nd Edition. Springer-Verlag, Berlin 2006, ISBN 3-540-28282-3 .
  • Urs Kindhäuser, Kay Schumann: Criminal Procedure Law . 5th edition. Nomos, Baden-Baden 2019, ISBN 978-3-8487-3865-6 .
  • Holm Putzke , Jörg Scheinfeld: Criminal Procedure Law . 6th edition. CH Beck, Munich 2015, ISBN 978-3-406-67573-7 .
  • Claus Roxin, Bernd Schünemann: Criminal procedure law: a study book . 29th edition. CH Beck, Munich 2017, ISBN 978-3-406-70680-6 .
  • Klaus Volk, Armin Engländer: Basic course StPO . 9th edition. CH Beck, Munich 2018, ISBN 978-3-406-71924-0 .

Comments

Web links

Wikibooks: Criminal procedural problems in the 2nd state examination  - learning and teaching materials
Wikisource: The criminal trial , contribution to the state in Germany (1914)  - sources and full texts

Individual evidence

  1. ↑ Urs Kindhäuser, Kay Schumann: Criminal Procedure Law . 5th edition. Nomos, Baden-Baden 2019, ISBN 978-3-8487-3865-6 , § 1 marginal no. 8-13.
  2. ↑ Urs Kindhäuser, Kay Schumann: Criminal Procedure Law . 5th edition. Nomos, Baden-Baden 2019, ISBN 978-3-8487-3865-6 , § 4 marginal no. 12.
  3. ^ Christoph Paulus: civil procedure law . 6th edition. Springer, Berlin 2017, ISBN 978-3-662-52656-9 , Rn. 311.
  4. ↑ On the concept of public interest: RiStBV Section 86 Paragraph 2.
  5. ↑ Michael Huber: Basic Knowledge - Criminal Procedure Law: The Indictment Principle . In: Juristische Schulung 2008, p. 779.
  6. ^ Stephanie Pommer: The principle of legality in criminal proceedings . In: Jura 2007, p. 662.
  7. ↑ BVerfG, decision of July 23, 1982, 2 BvR 8/82 = New Journal for Criminal Law 1982, p. 430.
  8. ↑ BGHSt 5, 225 (229).
  9. ↑ Thomas Fischer: Penal Code with ancillary laws . 65th edition. CH Beck, Munich 2018, ISBN 978-3-406-69609-1 , § 258a, Rn. 4a.
  10. ↑ Claus Roxin, Bernd Schünemann: Criminal Procedure Law: a study book . 29th edition. CH Beck, Munich 2017, ISBN 978-3-406-70680-6 , § 39, Rn. 3.
  11. ↑ BGHSt 15, 155 .
  12. ↑ Claus Roxin, Bernd Schünemann: Criminal Procedure Law: a study book . 29th edition. CH Beck, Munich 2017, ISBN 978-3-406-70680-6 , § 9, Rn. 14th
  13. ↑ Joachim Bohnert: The final decision of the public prosecutor . Duncker & Humblot, Berlin 1992, ISBN 978-3-428-07358-0 , pp. 299 .
  14. ^ BGH, judgment of April 21, 1988, III ZR 255/86 = Neue Juristische Wochenschrift 1989, p. 96.
  15. ↑ Herbert Diemer: § 152 , Rn. 8. In: Rolf Hannich (Ed.): Karlsruhe Commentary on the Code of Criminal Procedure . 8th edition. CH Beck, Munich 2019, ISBN 978-3-406-69511-7 .
  16. ^ Uwe Hellmann: Criminal Procedure Law . 2nd Edition. Springer-Verlag, Berlin 2006, ISBN 3-540-28282-3 , Rn. 57.
  17. ↑ VerfGH Munich, decision v. November 16, 2018 - Vf. 23-VI-16, Rn. 35 f. ; H. M.
  18. ^ Uwe Hellmann: Criminal Procedure Law . 2nd Edition. Springer-Verlag, Berlin 2006, ISBN 3-540-28282-3 , Rn. 76.
  19. ↑ BGHSt 42, 139 (145).
  20. ↑ Detlev Sternberg-Lieben: The "audio trap" - a trap for the constitutional prosecution? In: Jura 1995, p. 299.
  21. ^ Lutz Meyer-Goßner, Bertram Schmitt: Code of Criminal Procedure, Courts Constitution Act, subsidiary laws and supplementary provisions . 61st edition. CH Beck, Munich 2018, ISBN 978-3-406-71994-3 , § 274, Rn. 16-17.
  22. ↑ BGH, decision of August 8, 2001, 2 StR 504/00 = New Journal for Criminal Law 2002, p. 270.
  23. ↑ BGHSt 2, 125 .
  24. ↑ BGHSt 51, 298 .
  25. ↑ Doris Brehmeier-Metz: § 261 , Rn. 1. In: Dieter Dölling, Kai Ambos, Gunnar Duttge, Dieter Rössner (eds.): Entire criminal law: StGB - StPO - ancillary laws . 3. Edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-7129-8 .
  26. ↑ BGHSt 16, 164 .
  27. ↑ BGHSt 43, 321 .
  28. ↑ Hans Meyer-Mews: Prohibition of using evidence in criminal proceedings . In: Juristische Schulung 2004, S. 39. Werner Beulke: Criminal Procedure Law . 13th edition. CF Müller, Heidelberg 2016, ISBN 978-3-8114-9415-2 , Rn. 454
  29. ↑ Werner Beulke: Criminal Procedure Law . 13th edition. CF Müller, Heidelberg 2016, ISBN 978-3-8114-9415-2 , Rn. 454. Klaus Volk, Armin Engländer: Basic Course StPO . 9th edition. CH Beck, Munich 2018, ISBN 978-3-406-71924-0 , § 28 Rn. 6-7.
  30. ^ Daniel Kessing: The usability of evidence in the event of a violation of § 105 Paragraph I 1 StPO . In: Juristische Schulung 2004, p. 675.