Chance find

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In criminal procedure law , a coincidental find or what is known as coincidental knowledge is defined as specific evidence that is unrelated to the offense, but indicates that another criminal act was committed ( Section 108 (1) sentence 1 of the Code of Criminal Procedure). Use in criminal proceedings for a purpose that does not correspond to the original purpose that legitimized the collection of information is problematic.

Examples

If, for example, the public prosecutor's office initiates an investigation into the formation of a criminal organization and a search of the allegedly conspiratorial apartment finds no evidence of a criminal organization, but allegedly stolen property, then this stolen property is a chance find. If, in this example, the stolen goods can be assigned to a theft, a new suspicion arises, which may allow a seizure or confiscation.

Further examples:

  • In the case of a secret telephone surveillance for dealing with narcotics, the unsuspecting interlocutor of the accused confesses to having left the scene of the accident without permission the night before.
  • The police video surveillance during a soccer game not only records acts of violence but also the theft by a grandstand guest.
  • DNA identification patterns found at the scene of a homicidal crime can be assigned to a bank robbery years ago via the DNA database of the Federal Criminal Police Office.

Situation in Germany

In German criminal procedure law , random knowledge can only be used under certain conditions in the context of criminal proceedings . Because of the purpose limitation principle based on the basic right to informational self-determination , any purpose-changing use of personal data in or from criminal proceedings must have a legal basis and must not be excluded by use restrictions . This applies both to the use of knowledge gained on the basis of hazard prevention law in a criminal prosecution procedure and to the use of data from a specific criminal procedure to investigate another procedural offense.

In principle, the theory of the so-called hypothetical repeated intervention ( hypothesis of legitimate alternative acquisition ) applies . According to this, it depends on the legal basis on which certain data were collected: May a covert measure such as telecommunications surveillance or an online search only be used if certain catalog crimes are suspected (cf. § 100a Paragraph 2 StPO, § 100b Paragraph 2 StPO) , accidental finds obtained therefrom can only be used as evidence of an act also contained in the catalog of criminal offenses of the relevant authority to intervene, because of which the measure should originally have been ordered (cf. § 161 para. 3, § 479 para. 2 sentence 1 StPO). If, on the other hand, an investigative measure - such as a search - is permissible for every criminal offense, any incidental finds can also be used without restriction (see Section 108 (1) StPO). However, this only applies to a limited extent to incidental finds on the occasion of a search of persons other than the accused (Section 108 (1) sentence 3, Section 103 (1) sentence 2 StPO).

In particular, however, extensive exceptions, some of which are very difficult to define, are permitted. So it depends on whether a chance discovery should be used directly to prove a criminal offense or whether only other evidence can be found with its help (so-called remote effect). There may also be exceptions if the offense that was investigated and the offense that is to be proven by the chance discovery are presented as a so-called procedural unit.

A chance find does not apply to objects whose possession i. d. Usually already represents a criminal offense, such as B. narcotics, weapons of war, etc., as these are subject to confiscation . According to the wording of Section 108 (1) sentence 1 of the Code of Criminal Procedure, the object that embodies the chance find must only “indicate the perpetration of another criminal act.” These objects “are to be confiscated for the time being.” The searching persons are therefore in the Decision not free, but obliged to seize (see reduction of discretion to zero ).

criticism

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Since the individual powers of investigation depend on the suspicion of a catalog crime that is being investigated, abusive procedures could be initiated in order to search for “accidental findings” that could not be obtained with the investigation methods that are permissible in themselves.

Extended investigative powers are z. B. the postal control and telephone surveillance (§ 100a StPO), long-term observations (§§ 100c StPO Abs. 1 ab, § 100c acoustic living space surveillance and 163f StPO long-term observation), the systematic use of V-people and undercover investigators (§ 110a StPO or . § 110c StPO), the raster search , furthermore the leniency program introduced in 1994 and expired in 1999 (§ 129 para. 2 StGB old version) and since 1998 also the large eavesdropping in and out of apartments (§ 100c para. 1, no. 3 StPO ).

These powers would have been z. B. not in the case of drug offenses in the minor area or simple damage to property ( graffiti ), but certainly if the (ultimately untenable) connection to a criminal or terrorist organization is established.

Web links

Individual evidence

  1. ↑ Grawe: The accidental use of criminal proceedings: Accidental finds and other divergences in the use of information in criminal proceedings , 2008, p. 151 [1] mohr.de ( Memento from February 11, 2013 in the web archive archive.today )
  2. ↑ Tobias Singelnstein: Criminal procedural rules of use between the principle of purpose limitation and exploitation prohibitions. Requirements for the recovery of incidental finds and other improper use of personal data in criminal proceedings since January 1, 2008. ZStW 2008, pp. 854–893, pp. 864 f.
  3. ↑ BGH, judgment of April 26, 2017 - 2 StR 247/16
  4. ↑ Grawe: The accidental use of criminal proceedings: Accidental finds and other divergences in the use of information in criminal proceedings , 2008, p. 191ff.