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Body Search and Physical Examination of the Accused, the Privilege against Self-Incrimination and the Consequences of Illegally Obtained Evidence in German Criminal Law

Seminararbeit 2004 16 Seiten

Jura - Strafprozessrecht, Kriminologie, Strafvollzug

Leseprobe

Content

I. Introduction

II. Main Part
1. Body Search and Physical Examination of the Accused
a) Body Search of the Accused
b) Physical Examination of the Accused
aa) Physical Examination of the Accused
bb) Intrusion into the Accused’s Body
2. The Privilege against Self-Incrimination
3. The Consequences of Illegally Obtained Evidence

III. Conclusion

L I T E R A T U R E

Written Literature:

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I. Introduction

In the following seminar paper I will deal with the body search and physical examination of the accused, the privilege against self-incrimination, and the consequences of illegally obtained evidence in German Criminal Law.

In the main part, I will start with the presentation of the sections in the German Code of Criminal Procedure (GCCP) which lay down the provisions concerning the body search and the physical examination of the suspect in criminal proceedings. This will be followed by the requirements the fore-mentioned sections list in order to lawfully obtain evidence. Afterwards I will show different examples that fall under the one or the other and will so develop the differences between these two norms.

Then, I will move on with the privilege against self-incrimination. I will show how this privilege is guaranteed in German Law and if it is violated with regard to body search and physical examination of the accused.

In additional to this, I will also deal with the consequences of illegally obtained evidence with regard to such searches and examinations of the suspect.

In the end, a brief conclusion shall sum up the fore-mentioned findings and ideas.

II. Main Part

1. Body Search and Physical Examination of the Accused

In German Law of Criminal Procedure, the body search of the accused is distinguished from the physical examination of the suspect. These two methods of obtaining evidence are dealt with in different sections therefore I will speak about these two possibilities separately.

a) Body Search of the Accused

The search of a person is laid down in Section 102 GCCP which reads,

A body search, a search of the property and of the private and other premises of a person who, as a perpetrator or as an inciter or accessory before the fact, is suspected of committing a criminal offence, or is suspected of accessoryship after the fact or of obstruction of justice or of handling stolen goods, may be made for the purpose of his apprehension and in the cases where it may be presumed that the search will lead to the discovery of evidence.

Section 105 (1) 1 GCCP reads,

Searches shall be ordered by the judge only and, in exigent circumstances, also by the public prosecution office and officials assisting it (section 152, Courts Constitution Act).

Consequently, Section 102 GCCP requires (1) the search of a person that this person is (2) suspected to be the perpetrator, inciter or accessory of a crime and (3) it can be presumed that the search will result in the discovery of evidence. Furthermore, the body search of the person has to (4) be ordered by the right authority.

Body search of a the suspect means the search for non-physical material that comes into consideration as evidence[1]. Such traces of non-physical material must be hidden in or underneath the clothes, on the body surface or in natural orifices of the body such as the mouth, the vagina or the anus[2].

The suspect of a theft or burglary can for example be searched by a police officer for stolen goods in or underneath his clothes. Another example for Section 102 GCCP is the search for drugs the female suspect concealed in her vagina in order to smuggle them via an airplane into a country (body-packing)[3].

b) Physical Examination of the Accused

The physical examination of the accused is laid down in Section 81 a GCCP. This section reads,

(1) A physical examination of the accused may be ordered for the establishment of facts which are of importance for the proceedings. For this purpose, the taking of blood samples and other bodily intrusions which are effected by a physician in accordance with the rules of medical science for the purpose of examination shall be admissible without the accused’s consent, provided no detriment to his health is to be expected.
(2) The authority to give such order shall be vested in the judge and, if delay were to endanger the success of the examination, also in the public prosecution office including officials assisting it (Section 152 of the Courts Constitution Act).

aa) Physical Examination of the Accused

Section 81 a (1) 1, (2) GCCP therefore demands that a (1) physical examination of (2) the accused shall be (3) ordered by the right authority to (4) ascertain facts which are important for the proceedings.

Under this section physical examination of the suspect is described as the search for physical material such as physical characteristics[4], observation of the body’s constitution and functioning of the body itself or individual body parts[5] including the psychical condition and the mode of operation of the suspect’s brain[6].

bb) Intrusion into the Accused’s Body

This physical examination of the accused must be distinguished from the intrusion into the suspect’s body. Under Section 81 a (1) 2, (2) GCCP, the admissibility of this method requires an (1) intrusion into the body of the (2) accused which must be (3) ordered by the right authority and carried out (4) in accordance with the rules of medical science (lege artis) by a (5) physician (6) for the purpose of examination, (7) provided no detriment for his health is to be expected.

The intrusion into the suspect’s body is a specification of the physical examination and means the taking of a blood sample – as explicitly laid down in section 81 a (1) 2 GCCP –, the extraction of spinal cord fluid, semen and urine, the supply of medicine and the exposition to x-rays or any other injuries of the body surface[7].

If a person is suspected to have driven under the influence of alcohol, the police can measure his alcohol level. In Germany, when having stopped a suspect and being suspicious about his driving ability with regard to alcohol, the police officers would first offer him a tube in which he shall blow. This tube is a breath alcohol analyser and measures the alcohol level in the suspect’s breath. If the accused is willing to cooperate, to which he is not obliged because of the principle of self-incrimination, he would blow into this tube. After the alcohol level is measured the police can either take him to the police station or let him leave which depends on whether the suspect has more alcohol in his breath than he is allowed to or not.

If the suspect refuses to blow into the breath analyser tube he can be taken to the police station. There, a physician would take a blood sample from him which is allowed under section 81 a (1) 2 GCCP even if the accused neither gives his consent nor cooperates. With the examination of the blood sample the physician will be able to measure the suspect’s blood alcohol level.

[...]


[1] Schlüchter, no. 170; LR24-Schäfer, Section 102, no. 34.

[2] Schlüchter, no. 170; LR25-Dahs, Section 81 a, no. 16; Krey, no. 403; Beulke, no. 256; HK-Lemke, Section 81 a, no. 6; Kramer, no. 236; Meyer-Goßner, Section 102, no. 9.

[3] Eggen, quoted after: Pollack/Biggers/Carlton/Achord/Cranston/Eggen/Griswold, Ann Emerg Med 21 (1992), p. 1370 (1373); Beck/Hale, Br J Surg 80 (1993), p. 1513; Püschel/Schulz/Iwersen/Schmoldt, Kriminalistik 1995, p. 355 (357); Zimmermann, Kriminalistik 1995, p. 556; Decker/Rittenauer, Kriminalistik 1997, p. 339; Rogall, NStZ 1998, p. 66; Binder/Seemann, NStZ 2002, p. 234, footnote 1; Heinemann/Lockemann, p. 171 (173, 180).

[4] LR25-Dahs, Section 81 a, no. 16; Kramer, no. 230.

[5] Schlüchter, no. 170; Beulke, no. 241; KMR-Paulus, Section 81 a, no. 11; Kramer, no. 259.

[6] HK-Lemke, Section 81 a, no. 6; Pfeiffer, Section 81 a, no. 3; Meyer-Goßner, Section 81 a, no. 9 a.

[7] Schlüchter, no. 170; LR25-Dahs, Section 81 a, no. 22; KK-Senge, Section 81 a, no. 6; HK-Lemke, Section 81 a, no. 9; KMR-Paulus, Section 81 a, no. 6; Kramer, no. 260; Pfeiffer, Section 81 a, no. 5; SK-Rogall, Section 81 a, no. 38 f.; Meyer-Goßner, Section 81 a, no. 15.

Details

Seiten
16
Jahr
2004
ISBN (eBook)
9783638261463
Dateigröße
485 KB
Sprache
Englisch
Katalognummer
v22919
Institution / Hochschule
Universität Mannheim
Note
14 Points
Schlagworte
Body Search Physical Examination Accused Privilege Self-Incrimination Consequences Illegally Obtained Evidence German Criminal

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Titel: Body Search and Physical Examination of the Accused, the Privilege against Self-Incrimination  and the Consequences of Illegally Obtained Evidence in German Criminal Law