How can I monitor my self-talk

The Federal Court of Justice

Year of issue2005
Publication date10.08.2005

No. 113/2005

Prohibition of exploitation for self-talk in the sickroom

The Munich District Court II sentenced the defendant to life imprisonment for murder on December 13, 2004. The 1st criminal division of the Federal Court of Justice overturned the regional court judgment on the appeal of the accused and referred the matter back to another criminal chamber of the regional court.

According to the findings of the regional court, the defendant killed a farmer in 1998. The defendant has denied the act. The district court based its conviction that the defendant was guilty on the result of an acoustic room surveillance carried out in December 2003. The target of the wiretapping was the defendant's single room in a rehabilitation clinic, where he was staying for treatment of the consequences of an accident at work. The defendant recorded a self-talk that he had had after a phone call with a work colleague who had told him about a questioning about himself by the police. In the self-talk, the accused had said among other things: "Very aggressive! Very aggressive! I eam should have shot in the head. ”From this the regional court concluded that the accused had thought about an alternative method of killing, which would have drawn suspicion less on himself.

The Federal Court of Justice has objected to the exploitation of the results of the acoustic room surveillance. According to the law amending the code of criminal procedure, which was passed in implementation of the decision of the Federal Constitutional Court of March 3, 2004 on acoustic living space surveillance (BVerfGE 109, 279 ff.) (§§ 100 c, 100 d StPO), findings from an interference in the absolutely protected core area of ​​private life is also not used to investigate criminal offenses in the area of ​​serious crime. The self-talk of the accused in the sick room is to be assigned to this core area protected by Article 13.1 of the Basic Law in conjunction with Article 1.1 and Article 2.1 of the Basic Law. The decisive factor for this was an accumulation of several circumstances. It was a self-talk recorded as a result of government surveillance. The defendant had this self-talk in a living space protected by Article 13 of the Basic Law. The content of the self-talk was in need of interpretation with regard to the allegation. As a result of this assignment to the core area, the self-talk could not be used for evidence purposes to the detriment of the accused.

The judgment was to be overturned because the conviction of the district court is also based on the self-talk.

Judgment of August 10, 2005 - 1 StR 140/05

LG Munich II - 1 Ks 32 Js 32 922/98

Karlsruhe, August 10, 2005

Section 100c StPO

(1) Without the knowledge of those affected, the non-publicly spoken word in an apartment may be listened to and recorded using technical means if

1. Certain facts give rise to the suspicion that someone has one of the things mentioned in paragraph 2

designated particularly serious crime committed or in cases where

the attempt is punishable, has attempted to commit,

2. the act is particularly serious in individual cases,

3. on the basis of actual evidence, it can be assumed that the

Monitoring statements made by the accused are recorded for the purposes of the

Research into the facts or the determination of the whereabouts

of a co-accused are important, and

4. the investigation of the facts or the determination of the whereabouts

of a co-accused is otherwise disproportionately difficult or

would be hopeless.

(2) Particularly serious offenses within the meaning of Paragraph 1 No. 1 are:

1. from the Criminal Code:

a) Offenses of treason, high treason and endangering of

democratic constitutional state or treason and the endangerment

external security according to §§ 80, 81, 82, according to §§ 94, 95 Abs.

3 and Section 96 Paragraph 1, each also in conjunction with Section 97b, as well as according to

Sections 97a, 98 (1) sentence 2, Section 99 (2) and Sections 100, 100a (4),

b) Formation of criminal organizations in accordance with Section 129 (1) in connection with

Paragraph 4 clause 2 and the formation of terrorist organizations according to §

129a paras. 1, 2, 4, 5 sentence 1 alternative 1, in each case also in conjunction

with Section 129b (1),

c) Counterfeiting of money and securities in the cases of Sections 146, 151,

in each case also in connection with § 152, commercial or gang-related

Counterfeiting of payment cards, checks and bills of exchange according to § 152a Paragraph 3

and forgery of payment cards with guarantee function and forms

for Euro checks according to § 152b Paragraphs 1 to 4,

d) Offenses against sexual self-determination in the cases of §

176a Paragraph 2 No. 2 or Paragraph 3, Section 177 Paragraph 2 No. 2 or Section 179 Paragraph 5

No. 2,

e) Distribution, acquisition and possession of child pornography in the

Cases under Section 184b (3),

f) Murder and manslaughter according to Sections 211, 212,

g) Offenses against personal freedom in the cases of §§ 234,

234a para. 1, 2, §§ 239a, 239b and human trafficking for the purpose of

sexual exploitation and for the purpose of labor exploitation

according to Section 232 Paragraph 3, Paragraph 4 or Paragraph 5, Section 233 Paragraph 3, in each case as far as it is

it is a crime

h) Gang theft according to § 244 Paragraph 1 No. 2 and serious gang theft

according to § 244a,

i) Serious robbery and robbery resulting in death in accordance with Section 250 (1) or (2), Section

251,

j) predatory extortion according to § 255 and a particularly serious case of a

Extortion according to Section 253 under those mentioned in Section 253 (4) sentence 2

Requirements,

k) commercial stealing, gang stealing and commercial

Stealing from gangs according to §§ 260, 260a,

l) particularly serious case of money laundering, concealment unlawful

acquired assets in accordance with section 261 under the conditions set out in section 261 (4) sentence 2

mentioned prerequisites,

m) particularly serious case of corruption and bribery according to § 335

Paragraph 1 among those mentioned in Section 335 Paragraph 2 No. 1 to 3

Requirements,

2. from the Asylum Procedure Act:

a) Induction into abusive applications for asylum in accordance with Section 84 (3),

b) commercial and gang-like inducement to abusive

Application for asylum in accordance with Section 84a (1),

3. from the Residence Act:

a) smuggling in foreigners in accordance with Section 96 (2),

b) Smuggling in resulting in death or commercial or gang-related

Smuggling in according to § 97,

4. from the Narcotics Act:

a) a particularly serious case of a criminal offense under Section 29 (1) sentence 1 no.1,

5, 6, 10, 11 or 13 Paragraph 3 under Section 29 Paragraph 3 Sentence 2 No. 1

mentioned requirement,

b) a criminal offense according to Sections 29a, 30 (1) No. 1, 2, 4, Section 30a,

5. from the Act on the Control of Military Weapons:

a) a criminal offense in accordance with Section 19 (2) or Section 20 (1), in each case also in

Connection with § 21,

b) particularly serious case of a criminal offense according to § 22a para. 1 in connection

with paragraph 2,

6. from the International Criminal Code:

a) genocide according to § 6,

b) crimes against humanity according to § 7,

c) War crimes according to Sections 8 to 12,

7. from the Weapons Act:

a) particularly serious case of a criminal offense under Section 51 (1) in conjunction

with paragraph 2,

b) particularly serious case of a criminal offense according to Section 52 Paragraph 1 No. 1 in

Connection with Paragraph 5.

(3) The measure may only be directed against the accused and only be carried out in the accused's apartments. In the apartments of other people, the measure is only permitted if, based on certain facts, it can be assumed that

1. the accused named in the order in accordance with Section 100d Paragraph 2 appeared there

stops and

2. The measure in the accused's apartments is not solely for research purposes

the facts or to determine the whereabouts of a

Co-accused will lead.

The measure may also be carried out if other people are unavoidably affected.

(4) The measure may only be ordered if, on the basis of factual indications, in particular regarding the type of premises to be monitored and the relationship of the persons to be monitored to one another, it can be assumed that the monitoring results in statements that are to be ascribed to the core area of ​​private life, cannot be recorded. Conversations in company or business premises are usually not part of the core area of ​​private life. The same applies to discussions about crimes committed and statements by means of which crimes are committed.

(5) The eavesdropping and recording must be interrupted immediately if there are indications during the monitoring that utterances that can be attributed to the core area of ​​private life are being recorded. Records of such statements must be deleted immediately. Knowledge of such statements may not be used. The fact that the data was recorded and deleted must be documented. If a measure according to sentence 1 has been interrupted, it may be continued under the conditions set out in paragraph 4. In case of doubt about the interruption or continuation of the measure, a decision of the court must be brought about immediately; Section 100d (4) applies accordingly.

(6) In the cases of Section 53, a measure under Paragraph 1 is not permitted; if during or after the implementation of the measure that a case of section 53 is present, paragraph 5 sentences 2 to 4 shall apply accordingly. In the cases of Sections 52 and 53a, knowledge gained from a measure under paragraph 1 may only be used if this is not disproportionate to the interest in researching the facts or the determination of the whereabouts of an accused, taking into account the importance of the underlying relationship of trust . Sentences 1 and 2 do not apply if those entitled to refuse to give a certificate are suspected of involvement or favoritism, obstruction of punishment or stolen goods.

(7) Insofar as a prohibition of exploitation in accordance with paragraph 5 comes into consideration, the public prosecutor's office shall immediately obtain a decision by the ordering court on the usability of the knowledge obtained. If the court denies usability, this is binding for the further proceedings.

Section 100d StPO

(1) Measures pursuant to Section 100c may only be ordered at the request of the public prosecutor's office by the chamber of the regional court named in Section 74a (4) of the Courts Constitution Act in whose district the public prosecutor's office is based. In the event of imminent danger, this arrangement can also be made by the chairman. Its order becomes invalid if it is not confirmed by the criminal chamber within three days. The order is to be limited to a maximum of one month. An extension of no more than one month is permitted, provided that the requirements continue to exist taking into account the results of the investigation. If the duration of the order has been extended to a total of six months, the Higher Regional Court will decide on further extensions.

(2) The order is issued in writing. The following must be stated in the order:

1. as far as known, the name and address of the accused against whom

the measure is directed,

2. the charge on the basis of which the measure is ordered,

3. the apartment to be monitored or the living spaces to be monitored,

4. type, scope and duration of the measure,

5. the type of information to be collected by the action and its

Significance for the procedure.

(3) In the justification for the order or extension, the prerequisites and the main considerations must be set out. In particular, the following must be stated on a case-by-case basis

1. the specific facts giving rise to the suspicion,

2. the essential considerations of necessity and proportionality

the measure,

3. the actual indications within the meaning of Section 100c, Paragraph 4, Clause 1.

(4) The ordering court shall be informed of the course and results of the measure. If the prerequisites for the order are no longer met, the court must order the termination of the measure, unless the termination has already been initiated by the public prosecutor's office. The chairman can also order the termination of the measure.

(5) If the data obtained through the measures are no longer required for criminal prosecution and for any judicial review in accordance with paragraph 10, they must be destroyed immediately. The destruction must be documented. If the destruction is only postponed for a possible check according to paragraph 10, the data must be blocked; they may only be used for this purpose.

(6) Personal information from acoustic living space surveillance may be used for other purposes in accordance with the following provisions:

1. The usable ones obtained through a measure according to § 100c

personal information may be used in other criminal proceedings without

Consent of the persons monitored in this respect only for the clarification of a

Offense on the basis of which the measure according to § 100c is ordered

could, or to determine the whereabouts of such an offense

accused person.

2. The use of the obtained through a measure according to § 100c

personal information, including those in accordance with Section 100c (6) sentence 1

Clause 2, for the purpose of averting danger is only to avert an im

In individual cases there is a danger to life or an urgent danger to the body

or freedom of a person or objects of significant value that the

Serving the population, of culturally outstanding value or

are mentioned in Section 305 of the Criminal Code. The through a

Measure according to § 100c obtained and usable personal

Information may also be used to ward off an existing in individual cases

imminent danger to be used for other significant assets.

Are the information for averting the danger or for a pre-trial

or judicial review of the measures taken to avert danger

records of this information are no longer required

from the authority responsible for hazard prevention immediately

destroy. The destruction must be documented. So much for the annihilation

only for a possible pre-judicial or judicial review

is postponed, the data must be blocked; they are only allowed to this

Purpose to be used.

3. Are usable personal information through an appropriate

Police measures have been obtained, this information may be in

criminal proceedings without the consent of the persons being monitored

only to investigate a criminal offense, on the basis of which the measure according to §

100c could be ordered, or to determine the whereabouts of the

person accused of such an offense may be used.

(7) The data collected by the measure must be marked as such. After a transmission, the identification must be maintained by the recipient.

(8) The public prosecutor shall notify the persons concerned of the measures carried out in accordance with Section 100c. The possibility of subsequent legal protection according to paragraph 10 and the time limit provided for this must be pointed out. Affected within the meaning of sentence 1 are:

1. Accused against whom the measure is directed,

2. other monitored persons,

3. Owners and residents of the monitored

Flat.

In the case of data subjects within the meaning of sentence 3 nos. 2 and 3, the notification is omitted if it would only be possible with disproportionate investigations or if it conflicts with predominantly legitimate interests of other data subjects. In addition, notification is given as soon as this can be done without endangering the purpose of the investigation or the life, limb or freedom of a person or significant assets.

(9) If the notification according to paragraph 8 sentence 5 does not take place within six months after the end of the measure, the further deferral of the notification requires the approval of the judge. The same applies after a further six months.The court that was responsible for ordering the measure decides on the approval. If the notification has been postponed for a total of 18 months, the Higher Regional Court decides on the judicial approval of further postponements. Section 101 (4) applies accordingly.

(10) Even after a measure mentioned in Section 100c has been completed, those affected can apply for a review of the legality of the order and the manner in which it is implemented within two weeks of being notified. The court that was responsible for ordering the measure decides on the application. An immediate appeal against the decision is permissible. If the public complaint has been brought and the accused has been notified, the court dealing with the matter will decide on the application in the final decision.

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Judgment of the 1st Criminal Senate of August 10, 2005 - 1 StR 140/05 -