Defense mail
Defense mail is the name given to the correspondence between a defense attorney and his imprisoned client .
background
According to Section 29, Paragraph 1, Clause 1 of the Prison Act (cf. also the almost identical provisions of the State Penal Laws: Section 24, Paragraph 2, Sentence 1, JVollzGB III BW; Art. 32, Para. 1, Sentence 1, BayStVollzG; Section 30, Paragraph 2, sentence 1 NJvollzG; § 30 Paragraph 1 HmbStVollzG) the correspondence between the prisoner and his defense lawyer is not monitored; there is therefore an absolute ban on surveillance of this specially protected and privileged correspondence. The sense and purpose of the ban on surveillance is to prevent uninhibited intercourse between the prisoner and his defense counsel, i.e. H. to ensure their free exchange of ideas in writing, protected from anyone even the mere possibility of knowledge of the communication content by third parties. It is therefore forbidden to open the defense mail, even partially, if it cannot be completely ruled out that the controller can consciously or unconsciously perceive even fragments of the text, so that even the (partial) opening of the defense mail to merely establish the sender's identity or the control of the content of the shipment in the form of a rough inspection and leafing through the written documents is covered by the control prohibition.
Because the legislature was aware that the prohibition of the content control of the defense mail harbors the dangers of abuse. However, he consciously accepted this in order to prevent any impairment of the special relationship of trust that existed between the prisoner and his defense lawyer. The aim of Section 29, Paragraph 1, Clause 1 of the StVollzG is namely to guarantee the “completely free defense”, which is exempt from any hindrance or difficulty and in the context of which the lawyer is relieved of any restriction because of his integrity as an organ of justice. An impairment of the free defense and the relationship of trust with the mandate is already to be feared if, without a special cause, mail from a defender who has been properly registered with the institution is subjected to control. From the point of view of the prisoner and the defense counsel - which is the only decisive factor for a disruption of the relationship of trust - it expresses the institution’s distrust towards the defense counsel.
Opening of defense mail with the consent of the prisoner
According to established and established higher court case law, opening defense mail is not permitted, even with the prisoner's consent.
The Stuttgart Higher Regional Court deviated from this ruling : Defense mail may be opened and checked with the prisoner's consent. However, with a decision of October 25, 2011 , the Federal Constitutional Court overturned the above-mentioned decision of the Stuttgart Higher Regional Court and found that it violated the complainant's fundamental right under Article 10 (1) of the Basic Law ( confidentiality of letters ). It has expressly confirmed the legal opinion of the other higher regional courts, which consider the opening of defense mail to be inadmissible despite the prisoner's consent, and it has followed their case law. In addition, the Federal Constitutional Court has referred to the “special conditions characterized by far-reaching dependencies” that prevail in the prison system and made it clear that the consent of the prisoner can only exclude the fundamental rights-encroaching nature of an official measure if it is “free” or “free of inadmissible things Pressure ”had been issued. If the prisoner complied with an “unauthorized” request by a judicial officer to open defense mail in order to avoid withholding or delayed delivery of the same, “there could be no question of freely given consent”. The prisoner would only agree to such a procedure (opening of the letter by a servant or by himself) so that the letter would be handed over to him immediately. Another reason why the prisoner should agree to such a measure is not apparent. Consent is therefore - according to the case law of the Federal Constitutional Court - regularly ineffective.
Power of attorney; Identification of the defense mail as such
In accordance with the administrative provisions of Section 29, Paragraph 1, Clause 1 of the StVollzG, the defense counsel must identify himself as such to the penal institution by means of the prisoner's power of attorney or the court order. From the law itself there is no obligation of the lawyer to first prove his capacity. The administrative regulations are not instructions for lawyers; they are unsuitable for issuing binding instructions to the lawyer acting as defense counsel. Therefore, if a lawyer is specified as the sender of a letter , the prison must treat the mail as defense mail as long as there are no concrete indications that the lawyer sending the letter is not a defense lawyer at all or is abusing his position as a lawyer. It is absolutely forbidden to open the letter
The administrative regulations also stipulate that the defense mail must be clearly marked as such. In this respect, too, this administrative regulation cannot be followed. The defense counsel is in no way obliged to necessarily mark his letters as defense mail. If a lawyer is indicated as the sender on the envelope, the correctional facility must give the prisoner the letter unopened. At most, she is entitled - but not without a specific suspicion of abuse - to consult with the lawyer's office and to have it confirmed that it is a matter of defense mail. Such a request is, however, likely to violate the “immediate requirement” standardized in Section 30 (2) of the StVollzG, according to which incoming letters are to be handed over to the prisoner immediately.
Control of defense mail in the prisoner's cell
According to § 84 Abs. 1 StVollzG, prisoners, their belongings and the detention rooms can be searched. According to this, the inspection of written documents and records of a prisoner is also permitted if he does not have them in accordance with Sec. 30 Para. 3 StVollzG is locked to his property. Section 29 (1) and (2) do not constitute an exception to this. According to their wording, these provisions only ensure that the correspondence, which is specially protected by them, reaches the recipient in an uncontrolled manner.
However, when applying Section 84 (1) StVollzG, the meaning and purpose of the special protection of certain written external contacts of the prisoner associated with Section 29 (1) and (2) StVollzG must be observed. As in the case of the accused who has not been imprisoned, a. written documents and records of a prisoner, which are intended to serve his defense, generally withdrawn from surveillance and confiscation. The prisoner is therefore not prevented from keeping such documents and records in a locked envelope in his cell , contrary to Section 30 (3) Hs. 1 StVollzG, if he only identifies the content on the envelope. Documents marked in this way may not be removed from the detention room and may only be examined and inspected for prohibited objects in the presence of the prisoner. This “right of observation” is intended to counter possible misuse and, even with a mere visual inspection, to prevent the enforcement authority from being able to take note of the intellectual content of such protected documents beyond the mere inevitable “reading”. The presence of the prisoner is intended to limit the encroachment on his - insofar particularly protected - legal sphere.
Individual evidence
- ↑ cf. OLG Dresden , NStZ 2007, p. 707
- ↑ OLG Frankfurt a. M., NStZ-RR 2005, p. 61 ff. With further references
- ↑ OLG Frankfurt a. M., NStZ-RR 2005, p. 61 ff. With further references
- ↑ cf. OLG Bamberg , MDR 1992, p. 507; OLG Frankfurt a. M., NStZ-RR 2005, p. 61 ff. With further references; OLG Dresden, NStZ 2007, p. 707; OLG Saarbrücken , NStZ-RR 2004, p. 188
- ↑ OLG Stuttgart, NStZ 2010, p. 348
- ↑ BVerfG, decision of October 25, 2011 - 2 BvR 979/10 -, NStZ-RR 2012, p. 60 f. = StV 2012, p. 161 ff.
- ↑ OLGe Bamberg, MDR 1992 Frankfurt, NStZ-RR 2005, p. 61 ff. MwN, Dresden, NStZ 2007, p. 707 and Saarbrücken, NStZ-RR 2004, p. 188.
- ↑ OLG Karlsruhe , NStZ-RR 2005, p. 60; AK-Joester / Wegner, StVollzG, 4th edition, § 29 marginal no. 9
- ↑ OLG Dresden, NStZ 2007, p. 707; see. also OLG Karlsruhe, NStZ-RR 2005, p. 60; AK-Joester / Wegner, StVollzG, 4th edition, § 29 marginal no. 9
- ↑ as far as applicable OLG Munich, NStZ-RR 2012, p. 294 f.
- ↑ cf. OLG Karlsruhe, NStZ-RR 2005, p. 60; a. A. OLG Munich, NStZ-RR 2012, p. 294 f.
- ↑ OLG Karlsruhe, NStZ 2005, p. 52
- ↑ a b OLG Karlsruhe, NStZ-RR 2012, p. 27 fmw N.
