@article{2017:schmittleonardy:entrapment,
title = {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},
year = {2017},
note = {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.},
journal = {EuCLR European Criminal Law Review},
pages = {304--320},
author = {Schmitt-Leonardy, Charlotte},
volume = {7},
number = {3}
}