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Using the Results of Audio-Surveillance as Penal Evidence in the Federal Republic of Germany

NCJ Number
Stanford Journal of International Law Volume: 24 Issue: 1 Dated: (Fall 1987) Pages: 21-53
T Weigend
Date Published
33 pages
This article examines the legality of audio-surveillance by private and public parties in the Federal Republic of Germany, including the parameters for the admissibility of evidence obtained from audio-surveillance.
An outline of the relevant provisions of the West German Basic Law (Constitution) focuses on the right of privacy, the secrecy of telecommunications, and the inviolability of the home. The article then discusses the statutory authorization of telephone surveillance and audio-surveillance by private parties. This is followed by an analysis of the legal consequences of illicit wiretapping, the uses to which legally acquired information can be put, and how the fruits of audio-surveillance can be introduced into evidence at trial. Overall, tape recordings made by or upon request of state agencies without proper authorization are not admissible as criminal evidence. Illegal tape recordings by private individuals are admissible if their importance to justice outweighs the violation of the defendant's rights. Evidence derived from illegal wiretaps is admissible if the wiretap was conducted in the course of a criminal investigation; derivative evidence is inadmissible if the illegal wiretap was conducted in the interest of State security. 160 footnotes.