Entrapment & Evidence - The Impact of the ECtHR’s Judgment in the Case of Furcht v. Germany on the Jurisprudence of the German Federal Court of Justice

Charlotte Schmitt-Leonardy

doi:10.5771/2193-5505-2017-3-303

Contents
- Chapter Expand | CollapseAuthorsPage
- 215–216 Titelei/Inhaltsverzeichnis 215–216
- 217–218 Editorial 2017/3 Ingeborg Zerbes Ingeborg Zerbes 217–218
- 219–320 ARTICLES 219–320
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EuCLR European Criminal Law Review , page 304 - 320

Entrapment & Evidence - The Impact of the ECtHR’s Judgment in the Case of Furcht v. Germany on the Jurisprudence of the German Federal Court of Justice

Autoren

Charlotte Schmitt-Leonardy

DOI
- doi.org/10.5771/2193-5505-2017-3-303
- ISSN: 2191-7442
- ISSN online: 2193-5505
Abstract

The issue of police incitement or entrapment has long been the subject of vivid controversies. The central dilemma is a police investigation that legitimately requires the use of undercover agents, informers and/or other covert practices but is not conducted in an essentially passive manner. This kind of influence on an individual that is cumulating in the commission of an offence that would otherwise (maybe) not have been committed has been considered unfair and a breach of Art. 6 (1) ECHR (right to a fair trial) throughout the jurisprudence of the European Court of Human Rights (ECtHR) since Teixeira de Castro v. Portugal - a point of view generally shared in the jurisprudence of German courts. However, there is still no consensus about the parameters that are to be included in the decision as to whether the undercover action was legitimate and conducted in an essentially passive manner; and there is almost no consensus regarding the question if the fairness of the procedure can be restored at all after an illegitimate police entrapment. Furthermore, there is now a serious disagreement over the legal consequences that the acknowledgment of an infringement of the fairness principle should have. Until most recently, the German approach to the topic consisted of a mitigation of the sentence (“Strafzumessungslösung” or “fixing of penalty approach”). This notion was severly challenged when the ECtHR, in its decision in Furcht v. Germany, addressed the question of whether or not the German criminal courts had provided an individual who had become the subject of entrapment with sufficient redress. The ECtHR found clearly that in order to comply with the fair trial principle, all evidence obtained in such a way had to be excluded, or that a procedure with similar consequences had to be applied. Nonetheless, the German Federal Constitutional Court (Bundesverfassungsgericht) ruled in a decision handed down two months after Furcht v. Germany that even in the case of an undercover measure that had gone beyond the mere passive investigation of criminal activity, criminal proceedings as a whole could be considered fair if there had been a considerable mitigation of the criminal penalty. The First Criminal Division of the Federal Court of Justice, the highest court of appeal in criminal matters, followed the latter approach. However, the Second Criminal Division of the Federal Court of Justice changed its previously established jurisprudence fundamentally, following the ECtHR’s reasoning in Furcht v. Germany. The Second Criminal Division not only held that the evidence obtained by police entrapment must be excluded, but terminated the criminal proceedings in the challenged case of entrapment, even though it concerned serious allegations. This paper focuses on the reception of the ECtHR’s principles, as well as key arguments made by the German Federal Constitutional Court and the criminal divisions of the Federal Supreme Court and analyses the scope of the current dissent and its meaning for the evolution of domestic criminal law.
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