Remarks on the Fair Balance between Liberty and Security of a Person in Criminal Procedure in Germany

Abstract

I would like to start my lecture with a case study: A man is under suspicion of having committed a murder. There is a lack of evidence; there is no dead body, no witnesses, no other evidence. The suspect falls ill and he is hospitalized. While he is staying in the hospital the public prosecution wiretaps his mobile and intercepts his room in the hospital with the intention to record any conversation about his crime. In the night the suspect is talking to himself: I killed her, oh no, forgive me, I killed her. May we use this statement in trial? The criminal procedure as a whole and every individual order affects the basic liberties of the individual. Criminal proceedings typically affect the basic rights of the individual, the suspect, the accused, the witness, and the victim. By respecting the basic rights, the public authority and the prosecuting bodies indicate that the suspect or the accused is a person with rights in the criminal case. The accused is not just an object in a criminal case. The public authority and the criminal justice institutions which do not respect the fundamental rights of the suspect or the accused pursue a degrading criminal prosecution policy.