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Involuntary Self-Incrimination and the Right to Privacy in Criminal Proceedings

Published online by Cambridge University Press:  04 July 2014

Claus Roxin
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Extract

In any rule-of-law system the law of criminal procedure is bound to weigh the intended investigation of the truth against the interest of the person charged with a criminal offence in protecting his privacy. The German law of criminal procedure is a typical example of the permanent struggle with these conflicting demands. While the majority of the courts are making an effort to reinforce the protection provided to the accused, the latest pieces of legislation reveal a tendency of allowing increasingly far-reaching invasion of privacy. I will try to map out the most important aspects of this development.

In doing so I will distinguish between state-enforced, involuntary self-incrimination and the right to privacy. These two problems overlap because enforced self-incrimination will often entail invasion of privacy and, conversely, because an invasion of privacy by the state will often result in involuntary self-incrimination. But although these problems are intertwined I will differentiate between them and I accept that there will be some overlapping. After all, there may be invasions of privacy without self-incrimination and there may be cases of self-incrimination which are not caused by an invasion of privacy.

Type
Research Article
Information
Israel Law Review , Volume 31 , Issue 1-3 , Winter-Summer 1997 , pp. 74 - 93
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1997

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Footnotes

*

Professor of Law, University of Munich.

References

1 BGHSt 32, 140 (144) (decisions by the Federal Court of Justice in criminal matters, volume 32, from p. 140, quoted from p. 144); 34, 324 (326); OLG (Higher Regional Court) Düsseldorf, MDR (1988) 796; OLG Hamm, NJW (1974) 1880, includes further references.

2 BGHSt 34, 326.

3 BGHSt 20, 281.

4 BGH, StrV (1983) 321; dissenting opinion by OLG Oldenburg, NJW (1969) 806 and dissenting view by Güldenpfennig, NJW (1969) 1867.

5 BGH, StrV (1988) 239; (1989) 383; OLG Düsseldorf, MDR (1988) 796.

6 Concurring view e.g., by Braunschweig, OLG, NJW (1966) 214 Google Scholar; Hamm, OLG, NJW (1974) 1880 Google Scholar.

7 As stated among others by Kühl, , JuS (1986) 120ff.Google Scholar, and Schneider, , Jura (1990) 578ff.Google Scholar

8 With notes by Bohlander, , NStZ (1992) 504 Google Scholar; Fezer, , JR (1992) 385 Google Scholar; Roxin, , JZ (1992) 923 Google Scholar.

9 BGHSt 38, 228ff.

10 BGHSt 38, 224ff.

11 BGHSt 38, 224.

12 Includes a note by Roxin, , JZ (1993) 426 Google Scholar.

13 Criticized by Undeutach, , ZStW 87 (1975), 650 Google Scholar and countercriticism by Peters, ibid., at 663.

14 With notes by Fezer, , JZ (1987) 937 Google Scholar; Grünwald, , StrV (1987) 470 Google Scholar; Seebode, , JR (1988) 427 Google Scholar; Wagner, , NStZ (1989) 34 Google Scholar.

15 Dissent by LG (Regional Court) Hannover, , StrV (1986) 521 Google Scholar; Fezer, , JZ (1987) 938ff.Google Scholar; Grünwald, , StrV (1987) 472ff.Google Scholar; Seebode, , JR (1988) 430ff.Google Scholar; Wagner, , NStZ (1989) 34ff.Google Scholar; Reichert-Hammer, , JuS (1989) 446ff.Google Scholar; Neuhaus, , NJW (1990) 1221ff.Google Scholar; Roxin, in Jauernig, /Roxin, , 40 Jahre Bundesgerichtshof (40th anniversary of the Federal Court of Justice), (1991) 95ff.Google Scholar

16 BGHSt 34, 364.

17 Concurring view by BGH, , NJW (1991) 2844 Google Scholar referring to the disclosure duty according to section 807 of the Code of Civil Procedure.

18 Dissenting opinion by Ventzke, , StrV (1990) 279 Google Scholar.

19 For the discussion see e.g. Keller, , NJW (1989) 2289 Google Scholar; Rademacher, , StrV (1989) 546 Google Scholar; Gössel, Meyer-GS, (1990) 121; Kimmich, /Spyra, /Steinke, , NStZ (1990) 318 Google Scholar; Oberlies, , StrV (1990) 469 Google Scholar; Wächtler, , StrV (1990) 369 Google Scholar; Simon, , MDR (1991) 5 Google Scholar; Lühs, , MDR (1992) 929 Google Scholar.

20 According to BGH, , NStZ (1991) 399 Google Scholar failure to carry out a DNS analysis which would have been adequate to prove the offender's guilt will result in the judgment being set aside for a violation of the court's duty to investigate pursuant to sec. 244, para. 2 of the Code of Criminal Procedure.

21 Includes a note by Rogall, , NStZ (1989) 288 Google Scholar.

22 BGH, , NstZ (1990) 43 Google Scholar and dissenting opinion by Fezer, , StrV (1990) 195 Google Scholar; Stuttgart, OLG, MDR (1977) 70 Google Scholar.

23 BGHSt 38, 227ff.

24 BGHSt 26, 298; 27, 355; however, see BGHSt 30, 317 and a dissenting note by Odenthal, , NStZ (1982) 390 Google Scholar.

25 Concurring notes by Geerds, , NStZ (1983) 518 Google Scholar and Amelung, , JR (1984) 256 Google Scholar.

26 BGHSt 34, 397.

27 As stated, among others, by Wolter, Meyer-GS, (1990) 493; ibid., StrV (1990) 175; Störmer, , NStZ (1990) 397 Google Scholar; Geis, , JZ (1991) 112 Google Scholar.

28 Dissenting note by Joerden, , Jura (1990) 633, at 642ff.Google Scholar