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法學硏究

17第輯

2000

圓光大學校法學硏究所

發刊辭

바야흐로 세기는 지식사회 정보화시대라고 일컬어지고 있으며 과학기술이 고도21 ,로 발달함에 따라 개인이나 사회생활관계는 다양화 전문화되어 가고 복잡한 구조를,띄게 되어서 법의 역할과 기능이 더욱 강조되고 현실변화에 따른 법적 차원의 대응이,시급한 실정이다 본 연구소는 이를 위해 년대부터 연구와 병행하여 사회봉사의. 1970일환으로 법률상담을 전개하고 있으며 본 도 법학의 전 분야에 걸쳐 다양하고, 硏究誌수준 높은 연구성과물들을 게재하고 있다 그리고 대학당국의 전폭적인 지원으로 본.연구소 부설 시민법률상담소가 전문상담원을 두고 개소하여 법률의 무지로부터 불이

익을 받고 있었던 많은 시민들에게 희소식이 되고 있다 이러한 인적물적 시설의 확. ․충 못지 않게 우리 법과대학의 학문적 수준을 국제적으로도 인정받을 수 있을 정도로

향상시키는 것이 중요하다.금년도에는 외국의 저명한 법학자들을 초청하여 국제형사학 심포지움 을 개최함『』

으로써 과 의 발전에 새 지평을 열게 되었고 발표자들의 를,法科大學法學硏究所玉稿제 집에 게재하기에 이르렀다 그동안 본 연구소에서는 대학원생들에게도 논문발표17 .와 게재의 기회를 부여하여 왔는바 앞으로 논문집을 연 회 이상 발간하여 후속연구2자들의 연구의욕을 고취하고자 한다 그리고 본 연구소에서 수행한 익산지역 가정폭. 「력에 관한 실태조사연구 보고서를 함께 게재함으로써 의 전문성과 아울러法學硏究誌」

다양성을 꾀하고 있다.본 연구소는 앞으로도 많은 연구와 국내외 학술대회를 통해 법학문제에 대한 세계수․준의 지식과 정보교류를 모색할 것이며 전문연구기관으로 거듭나도록 노력할 것이다.끝으로 바쁜 일정에도 불구하고 귀중한 를 보내주신 여러 교수님들과 아울러玉稿

발간이 이르기까지 수고를 아끼지 아니한 연구원과 조교 등 여러분께 감사를 뜻을 전

하고자 한다.

년2000 월12원광대학교법학연구소장 명 형 식

17第輯 2000 12年月

目次

刊行辭 ………………………………………………………………………………………………………… 5

◉특집 -◉ 국제형사학 심포지엄 발표논문 -․European Development towards a co-operative or common Penal Procedure

……………………………………………………………………Hans-Seiner Küone/ 9․ New Measures of Investigation as Countermeasures against Organized Crime

……………………………………………………………………………………… Edwin Kube/ 23․ Victim Compensation in Asia: Its Development andImper atives

…………………………………………………………………………………Tatsuya Ota/ 43․ Das neue Organtransplantationsgesetz in Korea

……………………………………………………………………………… Byung-Sun Cho/ 57◉연구논문◉船舶抵當權 ………………………………………………………………………………………羅允洙 / 69

프로그램의 와 에 관한放送自由制限諸問題 …………………………………………田正煥 / 91의 과 그勞組專任者制度問題點改善方向 ………………………………………李羲成 / 109

스토킹과 그에 대한 입법의 기본방향 ………………………………………………張珪遠 / 129의共犯過剩 ………………………………………………………………………………………尹相民 / 157

인터넷 의上淫亂物規制 ……………………………………………………………………나국현 / 173의 과緊急逮捕制度問題點改善方案 …………………………………………………박종환 / 207

에 있어서 로운 의 의原因自由行爲可罰性根據 ……………………………………………洪太錫 / 229와 의投資勸誘證券會社法的義務 ……………………………………………………辛榕珍 / 251의 과外國判決承認執行 …………………………………………………………………………최안식 / 297의 에 된 의受刑者生活條件關聯權利保護 …………………………………………김완수 / 325

◉ 번 역 ◉법정책이란무엇인가?․ ………………………………………………………………田正煥 / 359◉ 자 료 ◉익산지역 가정폭력에 관한 실태조사연구․ …………………법학연구소 / 389

부록《》

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Contents◉ 特輯 ◉ - 국제형사학 심포지엄 발표논문 -European Development towards a co-operative or common Penal∙

Procedure …………………………………………………Hans-Seiner Küone/ 9∙ New Measures of Investigation as Countermeasures against Organized

Crime ………………………………………………………………………… Edwin Kube/ 23∙ Victim Compensation in Asia: Its Development andImper atives

…………………………………………………………………………………Tatsuya Ota/ 43∙ Das neue Organtransplantationsgesetz in Korea ……… Cho, Byung-Sun / 57◉ 硏究論文 ◉A Study on the Ship Mortgage∙ …………………… Rha, Yoon-Soo/ 69∙Rundfunkprogrammsfreiheit und ihre Beschränkung im Hinblick

auf Art.……………………………………………………… Jeon, Jeong-Hwan/ 91Problems and The Amendment Proposal of Full-time Union∙

Officials System ………………………………………Lee, Hee-Soung / 109Stalking as a New Social Problem and the Basic Direction for∙

Legislation …………………………………………………Chang, Gyu-Won/ 129An∙ Excess of Complicity …………………………………… Yoon, Sang-Min/ 157The Restriction of the Obscene Things on Internet∙

…………………………………………………………………………La, Kook Hyun/ 173A Problem and Improving Measures of Immediate Arrest System∙

……………………………………………………………………Park, Jong Hwan/ 207A base of punishment nature on Actio libera in causa∙

………………………………………………………………………Hong, Tae-Seok/ 229A Study of Investment Solicitation and Broker-Dealers' Liabilities∙

……………………………………………………………………… Shin, Yong-Jin/ 251Recognition and Enforcement of Foreign Judgements∙

……………………………………………………………………………Choi, An-Sik/ 297The Protection of Rights Related to the Conditions of Life∙

……………………………………………………………………… Kim, Woan-Soo/ 325飜譯◉ ◉

Was ist Rechtspolitik?∙ ………………………………… Jeon, Jeong-Hwan/ 361資料◉ ◉

∙Report on actural stste or domastic wiolence in Iksan region…………………………………………………The Law Research Instituts/ 391

국제 형사학 심포지엄 발표논문

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European Development towards aco-operative or common Penal Procedure

1)Hans-Seiner Küone*

. IntroductionⅠ

Since the signature of the so called Schengen Treaties in the earlynineties, borders within the EU are no longer under control. This haseased not only inter-European business but has given to all of thecitizens a new feeling. They are no longer at home under a strictly　　national perspective, but have gained at least a big part of continentalEurope as their new home country. So, even more than before, Europeancitizens have become used to living in different parts of the EU, be itfor business or leisure purposes.The legal development as far as penal law is concerned did not parallelthis situation. Sure enough the national systems of substantive andprocedural criminal law remained as ever. Concerning substantive lawthis is not so much of a problem. Most of the major offences are prettymuch alike within the Union. In spite of differences in details there ispretty much of a common understanding so far. The indisputabledivergences in measures of penalties are, however, not considered to be anuisance. Although for example in Spain in comparison with Germany

* Universities of Trier and Westminster

法學硏究 17第輯

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penalties tend to be more than double, for at least two reasons peoplefeel they can easily live with this situation. One reason is that thecomparability of the length of penalties mostly depends on very personaldetails which makes a reliable comparison difficult. The other is theregime of execution of sentences which in high penalty countries uses tobe more lenient than in low penalty countries.

The situation is totally different in penal procedure law. National penalprocedure laws differ considerably within the EU member states. Eventhe common origin of the continental systems from Roman Law, andsince times of enlightenment (end of 18th century) from French Law,cannot help a development which in many important details has led to acertain incompatibility. Not to speak of the common law system which isan adversarial one in contrast to the systems of the continent whichused to be inquisitorial. To make it even more complicated, only recentlyItaly has decided to include into their penal procedural law major elementsof the adversarial system. For details see Kühne, Strafprozeßrecht. EinLehrbuch zum deutschen und europäischen Strafverfahrensrecht,5.Aufl.1999,S.506 .Investigations into offences of citizens who live and act in differentnational states, as a rule, occupy different national authorities in thefields of police, prosecutorial and judicial work. It is mostly a matter ofchance which judiciary at the end is in the position of deciding upon acase. Take for example the very simple case of an Englishman becomingvictim of a theft in Paris through a German and an Italian perpetrator.Taking notice of the offence, the judiciaries of the United Kingdom,France, Germany and Italy have an original duty to prosecution. Let uspresume that the case comes before a German court. Now we are facinga variety of serious problems. What about the investigation resultshaving been obtained in the other countries? Under which prerequisites


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is the German judiciary authorised to use them? Differences inadmissibility of evidence have to be considered which presupposesknowledge about the national procedural systems in question; problemshow to access the foreign authorities have to be considered. If theGerman judges were to rely on the system of mutual assistance in legalmatters (Rechtshilfe), this would take an extremely long period of timebecause the judge´s application would go its way from the president ofhis court to the State´s ministry of justice, to the Federal ministry ofjustice, than to the foreign ministry of justice and from there down tothe judge concerned who would than pass his answer the same wayback. And we have not even taken into account the language problem! Soit is evident that the opening of borders for the citizens has to correspondwith legal techniques facilitating international legal cooperation withinEurope.Furthermore questions are raising from the authority of a judgement. Isit valid all over the EU or is the offender endangered to suffer repeatedprosecution ?These introductory remarks may have given plausible evidence for theimportance of thinking about a common European Penal Procedure Code,or at least about ways to enhance cooperation.

. The complex legal structure in the EUⅡ

Before we look for remedies, we ought to give an overview as to thecomplexity of competing legal systems which in the EU exist on variouslevels and make it difficult to understand the various interdependencies.

First of all there are the national legal systems of the EU memberstates. Their penal procedure law applies basically within the physicallimits of their territory. Inter European co-operation has to be executed


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according to the provisions of mutual assistance in legal matters (Rechtshilfe). Theyare basically international agreements, and do not take part of theEuropean Law which will be mentioned hereafter. As already mentioned,these regulations are not very efficient in terms of duration and speed.Yet, there are quite a few of these innumerable agreements which havebeen facilitated with special regard to the relations within the EU KühneStrafprozeßrecht 5. Auflage Rn 82ff, 70.Within certain limits the EU itself holds the power to indirectly ordirectly produce law, thus being of higher authority than the nationallaws. So far the national legal systems are subsidiary to European Law.The instruments for the European legislative work are directives andguidelines. Whereas directives exert immediate validity in the memberstates ( Art. 189 II EU Treaty ), and as the case may be overrulenational law, guidelines contain an obligation for the member states toinclude their content into national law by the proper national legislativeproceedings ( Art. 189 III EU Treaty ).Penal law as a whole has not been included into the (quasi) legislativepower of the EU. The reasons for this are evident. Penal law reflects theultimate authority of the state and includes a major part of its monopolyof physical power. This arcanum of national sovereignty , no doubt, wasnot supposed to be transferred to the then European Community. Butgrowing together, it was felt that for reasons of optimising crimefighting activities Europe ought to come to common terms in this fieldas well. The Maastricht Treaty in 1991 consequently amended the socalled third pillar, creating a general obligation for the member states topass intergovernmental regulations to facilitate crime fighting in Europe.The Treaty of Amsterdam which gave birth to a new Treaty for theEuropean Union, intensified the third pillar.If we look thoroughly through the pertinent provisions, we realise that inprincipal the obligation of implementing the third pillar still has to be


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accomplished through intergovernmental agreements. So far the thirdpillar generally does not provide for new instruments. But there are ,indeed, some details to be found in the respective provisions according towhich the assumption would not be far fetched that there is a directduty to unify penal law provisions in the fields of drug trafficking andorganised crime. The discussion has only started and we shall see whatlegal denomination these parts of the EU Treaty will be given to. Wecan conclude, however, that there is no direct authority of the EU inmatters of penal procedure law.

As a direct consequence of the third pillar, Europol has been established.Other than the name indicates Europol is no European Police Agencywith executive power. It rather is a sort of European Police Holding forthe improvement of police co-operation in Europe. The competencies are inthe field of exchanging police data - thus competing with the SchengenerInformationssystem - and in the realm of co-ordinating police activitiesin fighting organised crime, drug trafficking and corruption.

The UCLAF (Unite´de Coordination de la Lutte Anti Fraud) which onlyrecently (28.4. 1999) has changed its name to OLAF (Organisation de laLutte Anti Fraud ) is an EU organisation aiming at fighting fraudulentactivities to the detriment of the EU. This is a very important task, asthe EU is expending billions of ECU for subventions. That is why quitea few applicants mostly but not exclusively out of agriculture cannotresist the temptation and act fraudulently which is easy indeed becausethe complexity of the application and granting procedure is such thatnobody seems to have complete control of the process. On the otherhand, the member states in which the offenders live have no highinterest in prosecuting these offences See for example Dannecker (ed)Combatting subsidy fraud in the EC Area, Trier Academy of European


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Law, Köln, 1993; Commission of the European Communities (ed) Seminaron the Protection of the Financial Interests of the Community, Brussels,1989. The fraudulently acquired money, under this perspective, does somegood to the economy of the member state, and is a contribution fromBrussels, thus compensating the contributions each member state has topay to the EU.Therefor OLAF has been endowed with own rights of investigation ( since1997 ). The staff of OLAF has the right to enter into estates or housesfor search purposes. Seizure and other coercive measures are, however,only possible with the support of the competent national authorities.

Since 1998 a so called European Judicial Network (EJN) has beenestablished In consequence of Art.K3 of the Maastricht EU Treaty whichconsists of points of contact in each member state to direct foreignjudicial applications or to answer questions. The following data as aminimum have to be available in form of accessible documentation:- a list of all contact points within the member states- a pattern of the national judicial system- a summary of the most important details for judicial proceedings- most important legal texts.In Germany each state has constituted such an office together with theprosecutor general´s office. In cases of serious criminality each prosecutoror judge may directly turn to such an office in any member state tosolve problems of international procedural co-operation. The staff of suchoffices has to be in command of the English and/or French language tobe able to communicate decently.

The meeting of EU member states´ leaders in Tampere/Finland decidedin October 1999 to institute EUROJUST to fight organised and otherserious criminality. EUROJUST will be a central group of police officers,


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prosecutors and judges, each of them placed at an identical hierarchicallevel. Their task will be to enhance co-ordination of investigation withinthe Union. The European Council is called upon to create the necessarylegal instruments until the end of 2001 (No. 46 of decisions). EUROJUSTis still very much in a planning phase which makes it difficult to givean assessment on its potential.

The Schengen Treaties are international contracts of some of the EUmember states and are aiming at facilitating migration within thesignatory states. In the beginning only Germany, France, Italy, andthe Benelux-States were members. Meanwhile with the exception ofthe United Kingdom and Greece all EU member states have signed.The 2nd Schengen Treaty, the Implementation Agreement (SchengenerDurchführungsübereinkommen, SDÜ) contains very concretised regulationsin the field of police work and criminal investigation. Inter alia theSchengener Informationssystem , a pool of police data accessible to all　　member states, has been established, border crossing police activitieshave , to a certain extent, become possible , and penal sentences enjoymutual recognition. Through the Treaty of Amsterdam, main parts of theSchengen Treaties, the so called Schengen Acquis (SchengenerBesitzstand) have become part of the EU Treaty.

Last not least there is the European Convention on Human Rights(ECHR). This Convention has been worded by the Council of Europewhich has nothing to do with the EU. The Council of Europe inStrasbourg /France is an organisation on its own and represents 45states from the European continent . It might be seen as a EuropeanUnited Nations Organisation. The Conventions issued by the EuropeanCouncil have to be ratified by the signatory states in order to betransferred into national law. Germany ratified the ECHR in 1957. The


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Convention contains important regulations of penal procedure law ,especially in Art.5 and 6. They have to be directly applied by Germancourts. In case of conflict between ECHR provisions and those of theGerman penal procedure law (StPO), complicated problems arise.If the StPO provision has been issued prior to the ratification of theECHR, the convention applies according to the principal that new lawautomatically derogates previous law.Is the German law more recent, it ought to derogate the Conventionaccording to the said principal, as the ECHR does not enjoy the statusof hierarchical elevation above simple national law, nor is it considered tobe equal to constitutional law BverfGE 10 S. 271 ff; Gohler NStZ 1985 S.64. Yet, the German court may have the option to apply theconvention as long as it converges with provisions of the GermanConstitution ( Grundgesetz) which comprises wordings and contents verysimilar to some of those in Art.5,6 ECHR. So the detour over the GermanConstitution can grant respect for the Convention even if it conflicts with theStPO. The Federal Constitutional Court (Bundesverfassungsgericht) has turned tounderstand the ECHR as an incentive for the interpretation of theConstitution From BverfG E 19,343(347) to 82,106(115,119).In the remaining cases where a conflict between the StPO and theConvention cannot be cleared, there is the option for the European Courtof Human Rights, Strasbourg. The Court has the definite competence ofinterpreting the Convention. The effect of such jurisdiction is, however,not easy to be described. Being no part of any of the member states´national jurisdiction, there is no such thing like a cassational consequencefor the challenged national sentence. In general the authority ofStrasbourg sentences is one of international law, obliging the stateconcerned to respect the verdict. I which way respect has to be givento the verdict is not foreseen in the Convention. A number of reactionsopen to the state´s discretion are imaginable : Payment for damages


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through wrong with respect to the Convention national court decisions;reduction of sanctions according to a specific scheme or at the discretionof the competent national court; cassation of the national verdict;resumption of proceedings. Germany, after a long period of simplyneglecting this question, finally in 1998 has passed legislation whichmakes a criminal sentence successfully challenged in Strasbourgresumable, §359 No6 StPO. It has to be noted, however, that the defectreprimanded by the Court, must have been pertinent to the nationaldecision. When this is the case is a matter to be decided by thecompetent national court. At the moment we lack dogmatic constructionsto guide such decisions.

. Towards a more efficient co-operation or even aⅢcommon European Penal Procedure

The high complexity of legal provisions and institutions within the EUmakes it difficult, indeed, to come to common terms in the process offighting crime. Yet, there are at least two approaches very promising torelieve the problem in a medium or long term perspective. One isconnected with the jurisdiction of the Strasbourg Court, the other with aproject called Corpus Iuris .　　

1) The Jurisdiction of the European Court for Human RightsAlthough the core of the Court´s penal procedural provisions is restrictedto two, yet lengthy, provisions. They do contain pertinent principles ofpenal procedure. The jurisdiction of the Court has managed to extend theseprinciples into a complex system of guaranties for the suspect/accused thusforming a pattern within which the national penal procedure laws haveto situate themselves. For reasons of time I restrict myself to someexamples which may illustrate the content of this jurisdiction, and why it


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is not exaggerated to call it pre-structuring outlines of a commonEuropean penal procedure law.- The right to silence has always been an important issue, although inMallone EuGRZ 1996 S. 587 Anm. Kühne S. 571 the Court showed atendency to draw back from its former rightly rigid position- Questions of admissibility, respectively exclusion of evidence have beenfrequently submitted to the Court; so far the use of an agent　 provocateur　has been very much limited Teixeira v. Portugal, NStZ 1999,47 ;EuGRZ1999 S. 660- Cases of entrapment and especially those applying modern techniquesof surveillance have been critically revised but basically permitted underthe rule of law. EuGHM in StV 1998 S. 83 mit Anm. Kühne; Case ofKhan v. United Kingdom 12/05/2000- Conditions for and length of pre- trial detention have been definedEuGRZ 1998 S. 135 (129); vgl Peukert/Frowein EMRK-Kommentar Art 5Rn 110ff- The burden of proof in cases of alleged police violence has beenshifted in major parts to the police EuGRZ 1996 S. 504- The principle of fair trial has frequently been applied, although theCourt in this respect still has avoided to become sufficiently preciseFrowein/Peukert aaO. Art.6 Rn 71ff- The length of trials is another issue where the Court in many caseshas criticised a number of national courts, without, however, denominatingaspects according to which the reproach of lengthy trial could besubsumed. vgl. Case of Mattoccia v. Italy 25/07/2000; Case of C.P. vFrance 01/08/2000

These few examples may just give an impression of how the Court iscorrecting and amending national penal procedure laws, and thustransforming them step by step into resemblance.


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2) The corpus iuris

A group of international experts under the chair of our French colleagueDelmas-Marty has been asked by the European Commission to draft asubstantive and procedural criminal law code which had to aim at theprotection of the financial interests of the Union Kühne Strafprozeßrecht5. Aufl. Rn 1402. This draft was meant to be a basis for discussions tocreate the legal basis for a central European institution with an exclusivecompetence to investigate and put to trial those offences which at themoment in some member states are not even criminal offences.The part of substantive criminal law denominates new criminalprovisions which penalise fraudulent behaviour in a wide sense withrespect to subsidies coming from the EU. The procedural part is meantto provide regulations just for the prosecution of these offences.Anything else, for example the objective of a European criminalprocedure law, would not have met political consent.Yet, under the pretext of this limited project, it is very well possible thatideas can be developed that are helpful on the way to a commonEuropean criminal procedure or at least a respective skeleton law. Andfor sure the authors of this research group have had it in mind. Forquite convincing reasons the work for a criminal procedure law strictlylimited to cases against the financial interests of the EU is nearlyidentical with the work for a common European penal procedure law. Inboth cases different existing concepts of criminal procedure have to bereconciled to form a new operational entity with which all of the legalsystems of the EU can live. The option of just adopting one system andmake it the one effective for all of the EU member states does not makesense for political as well as for scholarly reasons. The political reasonsare evident. The scholarly reasons are nearly as evident because nobodycan say that the French, the Spanish, the English or the German system


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is a perfect one or absolutely preferable to the others.If we look into the procedural part of the corpus iuris we realise that,indeed, quite a n umber of most interesting starting points for anintegrated European penal procedure law have been elaborated.Competencies for prosecution are based on the principle of territory as itis common in Europe. Judicial control of all acts infringing uponindividual rights is in accordance with the existing codes in Europe, too.As the European Prosecutor´s Office is designated to directinvestigations, and to present the charge with the court, the inquisitorialor rather the instructional principle (Instruktionsprinzip) has beenselected. The idea of generally using national law as subsidiary law aslong as on the European level no special provisions exist, is helpful andin accordance with the general structure of EU Law.Important are the regulations relative to the rights of the suspect/accusedwhich simply refer to the relevant provisions of the ECHR and Art.10 ofthe UN International Covenant on Civil and Political Rights.Essential are rules of taking evidence. Insofar it is noteworthy thatevidence which has been acquired legally under the regime of onemember state cannot be challenged by the argument that it is illegalaccording to the law of another member state. This sounds great anddoubtlessly will find political consent. Yet, at the same time itdemonstrates how complex the process of merging different legalconcepts can be. This solution is, as a matter of fact, very much proneto abuse, this to an extent that makes the solution questionable. Becauseit means a reduction of standards to the existing minimum. In otherwords: if a certain piece of evidence is admissible only under onenational procedure law, and all the other procedural laws of the memberstates have decided to regard it as illegal and consequently inadmissible,this lowest standard of the single member state would indeed reign allprocedures, for police or the prosecutor´s would choose to use this state


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to legally acquire the respective evidence. This could very well be thebeginning of a procedure shopping with the objective of factually　　eliminating the more protective procedural provisions, those that sensiblyconsider individual rights against the virtually unlimited power of thestate. Such a reductional merger cannot be what we are looking forunder a European perspective.The already mentioned European Prosecutor´s Office is to be staffed bydelegated prosecutors from the member states. Consequently internationalcompetence as well as co-operation providing connections to the nationalsystems will be guarantied. This facilitates the implementation of theEuropean prosecutors´rights to conduct investigations in all memberstates, and to ask their national colleagues for any official support. Asthe control of the European Prosecutors is conveyed to the so called

“juge de liberte´”, that means national judges with an additional task to　act in the field of European investigations, the member states can feel attheir ease and be sure that the European Office will be under a certainsurveillance of the national jurisdiction.Furthermore it seems to be a good idea to pass the proceedings on tonational courts which than conduct the trial having the EuropeanProsecutor´s Office as partner instead of the national prosecutorialauthority. So the structure of appeal, cassation, and revision remainsunder a national regime.Concerning interpretation of European legal sources, be it the corpus iurisitself or the ECHR, there needs to be a court that is performing beyondnational perspectives to guaranty a common understanding and applicationof these laws. The corpus iuris proposes a competence of the EuropeanCourt in Luxembourg which is a Court of the EU and must not beconfounded with the European Court for Human Rights which is part ofthe Council of Europe.But in rightly discriminating these two Courts we come across another


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problem. Disputing for example an article of the ECHR within aproceeding according to the corpus iuris the last regular dicision on thisdispute is with the European Court. But the ECHR on the other hand isdefinitely interpreted by the European Court for Human Rights, as wehave learned already. So the case can be brought to the Court inStrasbourg where the decision might be in difference to the one at theEuropean Court in Luxembourg. Diverging opinions of the two Courts onthe same law are definitely undesirable. Therefore a decision will have tobe made as to which of the two of them will be endowed with theultimate competence of interpretation.

We can see that in spite of a number of complicated problems, thecorpus iuris is an important step into the direction of a skeletonEuropean Procedure Law. The as intelligent as prudent technique tointertwine national and European judicial authorities and to select validcommon procedural standards is promising, indeed. It will experiencepolitical as well as scholarly consent. At the same time it is evident thatmany problems are still to be solved. We are just now living in timeswhere the discussion of international/European comparative penalprocedure law has started belatedly. It will not only be a scholarlydiscussion. The different existing legal regimes will try to superimposeeach other and to live up to an all European authority. So under thepretext of a European harmonisation, national interests once again willfight for predominance. It remains to be hoped that these notions willnot totally preclude the chance to develop a penal procedural systemabsorbing the best ideas and skills out of the existing national laws.


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New Measures of Investigation asCountermeasures against Organized Crime

1)Edwin Kube*

1. Organized crime

Organized crime and how it is controlled has become a top issue in Europe. Itis a topic which at present is listed fairly high on the agenda of manynational government of the European Union and the Council of Europe.

The demand for illegal goods and services and for goods and services notlegally available at the desired price, as well as the supply situation, determinethe pulse of organized crime. Its international make-up is sometimesdetermined by the nature of certain crimes (e.g. cocaine trafficking) or thedemand situation in various geographic regions (e.g. illegal transportation ofstolen motor vehicles).

Since organized crime is naturally committed in secrecy, it is not possible todescribe it precisely with regard to its extent, structure and development.However, in Germany certain effects and indicators suggest that organizedcrime has in the meantime become established, though it cannot be ascertainedprecisely how far our social structures have already been affected by organizedcrime.

* University of Gießen Bundeskriminalamt Wiesbaden Germany


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The current development of organized crime in industrial nations is marked byfour tendencies:increasing readiness to use violence and brutalityincreased professionalism and use of new technologiesincreasing corruptiongrowing internationalization of criminal groups and the range of illegal actionUnfortunately, it is probable that the increasing pressure of economiccompetition higher unemployment and the turbulence of economic recessionabroad,1) will give organized crime new impetus. Furthermore, technologicalinnovation - in particular the inherent globalization of communication - willcompletely change the conditions of all organizational activity and consequentlyalso those of organized crime.

A particular danger exists in the fact that business executives - with the aimof increasing the companies' profits or getting over a financial crisis - violatecriminal and tax law provisions, thus committing white-collar crimes whosepractice is increasingly approaching organized crime. This usually starts withthe gradual expansion of business into the field of illegality, with theconsequence that the firm's policy is later formed by business transactionswithout any ethical or legal borderlines. This almost inevitably leads tocontacts with the "business people" of organized crime. Examples are thepurchase of rather large quantities of so-called special offers at an unusuallylow price or the illegal transportation of toxic waste to Eastern European orThird World countries.

At present, organized-crime-specific behavioural patterns can be observed invarious fields of criminal activity. An organized crime structure is mostusually suspected in the case of: narcotic drug offences (drug trafficking)property offences (for instance burglaries with centralized realisation of the

1) This is true e.g. for East European countries


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goods)economic crime (e.g. forgery and misuse of cashless means of payment oracting as agents for illegal workers)counterfeiting offencescrimes in connection with nightlife (e.g. encouraging prostitution, pimping,trafficking in human beings or illicit gambling)smuggling of persons with regard to asylum seekers or illegal immigrantsviolent crime (e.g. extortion of protection money/racketeering)illegal arms trading, nuclear crimes.

Organized crime ,not only includes a great variety of offences; the organizationof the criminals' cooperation also varies. For example, close cooperationbecomes less important, if organized crime appears in the form of networkstructure crime, which was the most common form in the past,2) in Germany.This form is characterized by connections and division of labour in the senseof a coordinated, frequently changing organization, which involves not only"full-time criminal professionals", but sometimes even supposedly law-abidingbusiness people. The structure of organized crime has however, increasinglychanged into a hierarchical and insular one. The structure now not infrequentlydisplays Mafia-like features.3)

The motivating force of organized crime is the desire - particularly offinanciers and other stringpullers - to obtain high profits as soon as possibleand to gain immunity from criminal prosecution by means of bribing thirdparties and not unusually by economic and political power-sharing. Thecomplete confiscation of illegally obtained profits is therefore a primary aim ofan effective fight against organized crime. The aim is to exhaust the sources

2) Still in the seventies and eighties3) According to a structural analysis on the basis of a list of indicators 70of all organized crime groups registered had a high, 499 a middle and 274a low level of criminal capacity


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of money and to prevent these illegal funds being used for the financing offurther criminal activities or channelled into legal transactions, therebydisadvantaging the competition. Money is often regarded as the "Achilles' heel"of organized crime.

Before one can survey the statistics of organized crime in Germany in order togive a brief report, the term "organized crime" must be defined. Since there isno legal definition of organized crime in Germany, a working group of justiceand police officials developed a definition in 1990. This definition, which is stillvalid, describes organized crime as a planned commission of crimes -motivated by the desire for profit and power - which are individually or as awhole of considerable importance, where more than two individuals cooperatefor a fairly long or indefinite period and if theyuse commercial or businesslike structures,use violence or any other methods of intimidation,influence politics, the media, public administration, the judiciary or theeconomy.On the basis of this definition - which differs slightly in comparison to otherdefinitions in Europe - the police data from the report on organized crime in1999 are a practical help, in that they reflect several elements of the structureof that category of crime.The 816 preliminary proceedings conducted with regard to organized crime inGermany in 1999 concerned a total of 7,777 suspects. The suspects were of 94different nationalities. A little less than 42 per cent of the suspects wereGerman nationals. 77 per cent of the preliminary proceedings analysed hadinternational links. Approximately two thirds of the investigations dealt withgeneral as opposed to offence specific patterns. Total financial losses of aboutDEM 1.4 billion (=about 0.6 billion US Dollars) were established. The profitestimated in addition to this amounts to about DEM 2 billions.


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According to the organized crime situation report of 1999, confiscationmeasures (forfeiture, extended forfeiture) were used in 181 of all preliminaryproceedings related to organized crime (= 22.2 % of the proceedings). Theseized or confiscated items were cash, account credits as well as real propertyand other forms of property such as aeroplanes, cars, jewellery and computers.The total amount of confiscated criminal profits was nearly DEM 119 millions.This is, however, only 6 per cent of the estimated profits obtained by criminalorganizations in 1999. In 1998, about 9 per cent of the estimated profits wereconfiscated. This shows that the forfeiture and extended forfeiture provisionson the whole have relatively little effect.

2. Fighting organized crime

There is no "royal way" in fighting organized crime. A broad range ofmeasures is necessary. In the opinion of experts the police control of organizedcrime can be intensified by improvements made in the areas of organisation,tactics, training, the law and the development of public awareness. To dealwith the two basic forms of organized crime - criminal networks andhierarchicly organized independent groups - the control of organized crimeshould accordingly divided into two branches:- criminal-oriented, local police units who investigate the criminal networks inthe local original "milieu" of the metropolitan areas;- specialized case-oriented (primarily central) police units who investigate theindependent group. The existing specialized departments for certain crimeswhich are frequently committed by organized criminals (crimes involvingdrugs, counterfeit money, economic crimes etc.) are to be incorporated into thiscontrol system. By setting up special task-forces made up of a few highlymotivated investigators, a powerful combination of the various types ofdepartments, depending on the case, can be created.


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The reciprocal flow of information between the various departments dealingwith organized crime must be intensified. The electronic file "organized crime"must be built up to form the core of this information exchange. Moreover, theflow of information from the entire police base to the departments workingwith organized crime must be improved. This can be achieved above all bysetting up appropriate education and training programs (headword:sensibilization).

The fight against organized crime requires efficient cooperation between thevarious law enforcement agencies. International cooperation - particularly inurgent cases - should be improved by making the mutual support (headword:ICPO-Interpol or Europol) more effective and by bilateral as well asmultilateral agreements. Cooperation with the public prosecutors can be mademore intensive by setting up prosecuting offices specializing in organizedcrime. These departments can increase their knowledge by working directlywith the police and by taking part in police training programs. Furthermorecooperation with the administrative authorities (e.g. tax, trade, employmentoffices) is of major importance, especially in view of the overlapping of legaland illegal activities.

The high flexibility of organized crime requires fast reaction on the part of thepolice. Organized crime cannot be curbed if bureaucratic delays continue tohold up the police response. Well-worn practices must be reconsidered.

The departments involved in organized crime enforcement should be insulatedfrom the rest of the police because of the high degree of danger associatedwith organized crime. This must be done such a way as to not obstruct theflow of information from the police base.

It is nor easy to statistically establish the scope of organized crime. This also


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applies for police working statistics used to date for the allocation of personneland budgetary funds. The long and far reaching investigations necessary incases of organized crime can hardly be evaluated in numbers. Their successsometimes lies in merely disquieting the scene. It is therefore important infuture to reach a greater qualitative evaluation of the investigation work oforganized crime.

The illegal activities of organized crime groups are conspiratorial, making thework of covert investigators, informants and private agents of confidenceindispensable. Improvement is also necessary in this respect, for example, interms of providing better security equipment for undercover police officers, andincreasing funds for informants. Entrapment (also in other forms than thosebeing done by an agent provocateur, for example, controlled deliveries ofdrugs) is often an efficient but intricate means of investigation. Entrapmentshould therefore be regulated by law.

The Police can use special measures - even unconventional ones - to shakeup and put pressure on the scene. Such primarily preventive measures includeshowing up at "milieu meetings" unexpected controls, observation, electronicsurveillance and wiretapping, even just announcing such measures, as well asstarting and steering false rumors. By this strategy the scene will be keptfrom undertaking further consolidation and causes criminals to figure out wayto evade intimidation, which in turn can provide tips for the investigativeworks.

The fight against organized crime should concentrate on the persons in keypositions, who at least in the local "milieu" are often known to the police.

The members of the organized crime scene are bound by mutual interests andbenefits. Thus, the seizure of criminal assets is an extremely valuable tool in


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the fight against this type of crime. Necessary is to proactively eliminate thelogistics of organized crime groups.

The training and education of law enforcement officials dealing with organizedcrime is an essential means of controlling such crime effectively. Trainingprograms must be structured to cover all the various aspects relevant for thistype of police work.The programs should include- legal aspects- behavior and know-how typical of organized criminals- covert investigative tactics- behavior of law enforcement officials as witnesses.

Experts recommend that the penal law and the penal procedure law as well asthe police statutes concerning crime prevention must be reconstructured inmany countries to accommodate the requirements of effective control. Thisapplies particularly to preventing the misuse of new technical devices (e.g.Internet) and effectuate combatting money laundering and the forfeiture ofassets. It is obvious that such a strategy makes international cooperationnecessary.

In the area of penal procedure law, clear regulations for covert measures aremandatory. The use of false identity papers, setting up duumy firms and thepossibility to postpone an arrest (where - like in Germany - the principle oflegality is effective) must be legally permitted by a specific law.

The right to undertake wiretapping measures and electronic surveillanceoutside homes stipulated in §100 a and §100 c Penal Procedure Code, hasbeen broadened to encompass eavesdropping on face-to-face conversationswithin private homes (1998: §100c III Penal Procedure Code).Police demands include:


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- ensuring the secrecy and confidentiality of information from the point whenthe initial contact is made with the private agent or informant;- extending the legal instrumentation to tracking down and seizing criminalassets;- improving the law with regard to witness protection- introducing far-reaching crown witness regulations4)- providing the possibility for witness (especially informants) not to bequestioned in court or to be questioned without their identity being known tothe defendant and the defence;- consequently, more permission to question police officers as witnesses byhearsay.

Preventive measures in the form of informing the public about the methods oforganized criminals and the available security techniques will have little impacton organized crime. However, efforts by the police to educate the public cansupport the repressive fight against organized crime.Public rejection of organized crime as a special threat to the community shouldbe promoted. Active efforts against crime on the part of the citizens, such asdisclosing information and reporting criminal activity are limited by thedangerous and covert nature of organized crime.

If organized crime is not effectively fought, there will be a serious risk of itsdeveloping into an uncontrollable phenomenon.

3. New measures

The illegal activities of organized crime group are conspiratorial, making thework of undercover agents and informants or private agents of confidenceindispensable.4) A similar law existed in Germany only for a specific period.Its re-introduction is being considered.


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1) Entrapment

Entrapment within undercover environment can be contrasted with respect towho initiates the illegal action, the target or the undercover agent, and withrespect to the degree of consensual behavior. The nature of the offence mayaffect these factors.

For example, where agents are potential victims of predatory offences they areforced to create an artificial environment and to rely on nonverbal equivalents,such as the drunk decoy with an exposed wallet. I will not deal with this typeof undercover work but with the more consensual type of violations of law.Here the agent approaches the target and proposes to the suspect (e.g. amember of a drug cartel) the illegal action (e.g. to sell drugs).

The necessity to arrange the environment for a criminal deal - to get strongerevidence - makes the undercover work often very intricate. For example, whenan offer made in an appartment by a member of an organized crime group isto be repeated in the street, agents may thus attempt to manipulate targetsinto "instant replays" where what has been said in private is repeated underelectronically monitored and taped conditions in public place. (see section 100cCode of Criminal Procedure)

In defining entrapment as passively offering an opportunity to predisposedpersons the German Courts have adopted a primarily subjective standardinvolving the predisposition on the part of the potential offender to commit thecrime. In our law usage entrapment refers to a current willingness to commitcrime apart from the nature of inducement. This focus rather than theobjective behavior of enforcement officials or their private agents permits to goquite far in encouraging and facilitating the commission of a crime.


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The undercover police investigator or the private agent as "agentsprovocateurs" use an artificial criminal environment, for example posing asthieves who try to find out if the targeted person will buy stolen goods. Animportant factor to assess the degree of predisposition and of inducement bythe police or the private agent is connected - in practice - with the priorbehavior of the subject who is ensnared. Are we dealing with a naive personof limited capacity or with a habitual offender or a recidivist? Are we dealingwith an opportunistic offender who will take advantage of a situation but lackthe resources to carry it out on his own? When the question of entrapment israised such distinctions are relevant to the legal determination of predispositionon the one side and of manipulation on the other and to assessing the legaland ethical basis of the tactic.

The main problem concerning entrapment is that police or their agents maysuggest the offence and then through trickery or persuasion induce theoffender to break the law. Because of the secrecy involved and the absence ofeffective external control over covert actions entrapment is a real danger andunfortunately something that can - in detail - seldom be proven in court.

Private agents and informants, because of money due to them or the interestof good relations to the police or a desire to eliminate competitors often havea strong incentive to entrap others. Control is difficult because private agentsrarely have to appear in court and no personal corroboration by the privateagent is a prerequisite for sentencing the accused. The police officer who -after the entrapped target had tried to commit the crime - performed thequestioning of the private agent, will testify in the court and corroborate theevidence given to him by the agent. The same procedure will happen if acovert investigator acts as "agent provocateur".

Entrapment can be a problematic investigative measures for the police.


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Organizational expectations to meet arrest rates or the desire to be successfulas a factor in promotion or the financial interests of private agents can beconducive to crime encouragement rather than preventive actions.

In the case of entrapment of a suspect who is predisposed the later accused atleast was involved in the offence even if the details of the commission of theoffence stem from inducement. An offence occurs and a high degree ofcooperation is present. Therefore it will be a just reaction if the offender bepunished sometimes with the consequence that the sanctions will not be asharsh as they would have been without entrapment.

In cases where the police or their agents had manipulated a not predisposedtarget, a person who had at first neither intended nor planned the commissionof the crime, the consequences could be different. In Germany for examplesone courts would cease the further proceedings(Verfahrenshindernis/Verfahrenseinstellung). Others would not punish himthough he was guilty (Strafausschließungsgrund). Most of the courts wouldhowever punish the not predisposed entrapped person, but on a low level ofpunishment.

As you see there are different legal opinions available in the Germanjurisdiction. In the law literature many scientists are of the opinion thatentrapment of nonpredisposed individuals should not be allowed.

To sum up: Quite often covert investigators have to adopt the behavior of thetargeted persons and their "milieu" in order to gain confidence. There is a riskthat those undercover agents get involved in criminal behavior. Instead ofpreventing crime there is some possibility that police may further and facilitatethe commitment of crime. In the consequences the same is true for the privateagents.


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In Germany some problems with undercover agents and requirements of theConstitutional Court have led to more stringent law regulations concerningcovert investigators (§§ 110a-e Penal Procedure Law), but not to a broadquestioning of the tactic itself. Compared to traditional police methods, inGermany in the past covert tactics - were relatively unhindered - bylegislative restrictions. Also judicial controls were quite limited. Now inGermany undercover police officers (verdeckte Ermittler) are only allowed todo undercover work if special predispositions exist. Undercover work incriminal investigations is according to the German Penal Procedure Law onlypermitted if the clearance of enumerated serious offenses is not promissingwithout this means. In some cases, for example, when a covert investigatorenters an appartment with a mock identity (using his so-called legend) thepermission of a judge is necessary, In situations where crime has to beprevented according to the police statutes the restrictions are not so intense.Up to now the employment of private agents of confidence or of informantshas not been regulated in the German Penal Procedure Law. This covert tactichas been accepted; the private agents and informants are treated as witness;but regularly they are not presented to court.

The question is if there are less dangerous and similarly effective strategiesand tactics available to combat organized crime. To my opinion the need forundercover work including entrapment can significantly be reduced by thethree following approaches:- legal change in the definition of crime, for example decriminalization in thefield of the possession of so-called soft drugs (especially Marihuana andHashish) for the own consumption- more effective crime prevention, for example installation of electronic devicesto make auto theft more or less impossible- improvement of noncovert investigation and scientific assistance, for exampleoptimizing the methods of forensic science in the field of verifyng the age of traces.


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However, I will not deny that the proposed approaches are often connectedwith the infringement upon private rights. But the possibilities for lesseningcovert means do exist even if some of them seem to be less successful or arealso far from desirable.

The traditional reactive mode of crime investigation is daily police work withregard to the majority of offenses. The police start with investigations afterthe victim or another witness have reported the crime. From this perspectivethe concept of covert work in the sense of preliminary or initiative lawenforcement and crime prevention represent selection strategies. There is aseparation between an area of proactive and intensified investigations and anarea of reactive routine investigations. Though the principle of legality (thepolice are obliged to investigate every suspected criminal offense) is effectivein Germany, police are allowed by the concept of covert investigation to stressstrategically oriented their work on the more dramatic fields of organizedcrime.

I think, the best solution will be to have an adequate balance between covertand traditional investigative work with a clear description of the tasks andcompetences of covert investigators, private agents of confidence andinformants. The regulations in the German Penal Procedure Law aim at thisbalance though the regulations are still incomplete.

2) Wiretapping/Electronic surveillance

Among the various investigative techniques wiretapping has been the one withwhich the most European agencies are most familiar. Indeed, in the past manyof the European States relied on that type of electronic surveillance withgreater frequency than was the case in the Unired States.


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Currently their are three type of interceptions for which electronic surveillanceorders (in Germany authorized by a judge) are required. All are situations inwhich law enforcement agencies rely upon the use of an electronic ormechanical device to overhear the conversation and in which the interceptionis not known to the partners of communication:- Wire communications are "aural" transfer which are carried by wire andinclude the human voice.- Oral communications are utterances by a person which are carried by soundwaves and include ordinary speech.- Electronic communications are defined as the transfer of nonvoice data by avariety of transmitting systems including electronic mail, fax etc.

Electronic surveillance has generated substantial political and legal controversy.Some forms of electronic surveillance, such as pen resister - which revealonly the telephone number that one has dialed - are - for such techniques -relatively uninvasive. Wiretaps on telephones and listening devices, so-calledbugs, in people's homes and cars are far more intrusive. Most governmentswill at least authorize wiretapping but strictly control - sometimes by ajudge's permission - the application of such devices by the police or other lawenforcement agencies. In Germany wiretapping as an investigative technique incriminal cases is allowed after a judge has given permission if a seriouscrime, enlisted in a catalogue, is involved (§100a Penal Procedure Law).

The exception to close restrictions on electronic surveillance is nationalsecurity. In much of Europe wiretapping by intelligence agencies is subject toless vigorous scrutiny. In Germany, for example, a small group of members ofParliament must be continually informed about what is going on in this fieldof intelligence work.

As a result of miniaturization and other technical developments, surveillance


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equipment has become smaller, easier to conceal, and more portable. It hasbecome more reliable and more powerful. Longer-lasting and stronger batterieshave temporally and spatially extended transmission range. Aided byremote-controlled and self-activated devices it is nowadays relatively easy tomonitor and record the communication in secret. This development makeselectronic surveillance a successful means for investigating organized crime.

However, increased awareness by professional criminals that their criminalconversations may be subject to wiretapping has resulted un their reluctanceto use telephone at home. The 1992 law amendments in Germany thus providelaw enforcement agencies with the competence to target suspects of seriousoffenses (enlisted in a catalogue) by microphones when those persons areoutside private homes. In order to effectuate the police using such electronicsurveillance as a last resort the police as the applicant must establish thattraditional investigative procedures appear to be unlikely to succeed if tried, orthat the normal means of investigation would cause extreme difficulties. InGermany a special order by a judge authorizes interceptions for up to severalmonths, but not longer than necessary to achieve the objectives of theinvestigation. Extensions are possible if there is a need for furtherinvestigation. Police officers may use intercepted conversations for evidencerelating to offenses are enlisted in the catalogue of the Penal Procedure Law.After the covert operation has come to an end, it is generally required thatnotice be given to targeted persons whose conversations were intercepted.

The value of electronic surveillance including wiretapping is regarded as highlyeffective. Electronic surveillance has contributed to successful investigations oforganized crime to a remarkable extent. It gives insights into the structure andoperations of criminal groups and in the identification of criminal assetssubject to forfeiture.


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I would also like to mention the subject of mobile phones which are beingused with increasing frequency. Mobile telephones produce signals which arepicked up and are transmitted by localized senders. If someone is carryingsuch a telephone while travelling in a car, the signal is traceable, as to areaand time. The use of"global positioning" allows a more precise determinationof the point from where the signal has originated. Such equipment is oftenused secretly by the police by placing a sender on a vehicle in order to trackthe signal.

Because criminals who use mobile phones constantly swop telephone cards,methods are being developed to recognise identifying characteristics for mobilephones and the telephone cards which have been used.

In 1998 both houses of the German Parliament overturned Article 13 of theConstitution (basic law) with the two third majority necessary for a change toenable acoustical electronic surveillance of face to face communications inhomes. Though the new law has already become effective in may 1998 (§100cCode of Penal Procedure) only 9 dwellings were "bugged" in that year. Thelongest surveillance took 42 days. Altogether 20 people were involved in theseactions in 1998.

This change to the Constitution has been called "great bugging operation" (Großer Lauschangriff). It is an additional means to preventative electronicsurveillance in homes which was previously legal under specific restrictionsand is still legal today. Investigators may listen secretly to the conversationsof suspects thought to be involved in specific serious offenses (like murder ormoney laundering) in their homes.

This type of electronic surveillance in homes is only legally acceptable if thetraditional methods of enquiry are likely to fail or would be in not proportional


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way more difficult. In general it is also necessary that 3 judge agree inadvance.

By the way, the tern home or dwelling ("Wohnung") is interpreted in a widesense. for example also caravans or mobile homes but not official rooms inpublic buildings are regarded as homes dwellings. The electronic surveillanceof homes by "bugs" is still under discussion by lawyers and politicians. Forexample some presupposition for the eavesdropping of homes should not besufficient. They ask for a higher level of suspicion namely strong suspicion(dringender Tatverdacht).

I would like to add a further legal possibility of electronic surveillance: § 16of the 1997 edition of the BKA-Law allows employees of the BKA (FederalOffice of Criminal Police) to use technical equipment to listen to and recordconversation, or to take photographs inside or outside a house withoutknowledge of the persons concerned during an investigation (or during theimmediate timeframe connected with it) if their own safety is involved.

The recordings can only be introduced into a trial as evidence in accordancewith the principle of proportionality if a Judge has given prior approval thatthe recording has met legal requirements. This regulation of the introduction ofrecordings as evidence has been put into the Penal Procedure Law in August2000 and now applies to all police forces.

On the subject of wiretapping, despite the manifold legal and technicalproblems, I would like to comment on only two questions recently beingdiscussed in Germany:

The first question concerns the "search" of a mailbox in the Internet.Following a house-search for which a judge's warrant had been issued, the


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Federal Attorney General had seized motes from a suspect, containingtelephone numbers and passwords. It was thought that the numbers inquestion were the telephone numbers and connections to mailboxes, access towhich was protected by passwords. It was also suspected that the subscriberswere acting as intermediaries to supply the users with information of an illegalnature. For this reason, the Federal Attorney General's Office applied to theExamining Magistrate at the Federal Supreme Court of Justice for a warrantto place the mailbox under surveillance, which was granted (cf. BGH inComputer und Recht 1996, p. 488).

The Examining Magistrate based his decision on the ruling for telephonewiretapping (Section 100a Code of Criminal Procedure). He applied this legalregulation to any kind of information transmission in the light of technologicaldevelopment. Thus, the surveillance of the transmission of information from orto a closed mailbox should be allowed. The target of the interception was thestock of data deposited in the mailbox. The judge, however, restricted theinterception to the stored data as follows:

- on the one hand, he demanded that, when trapping the mailboxes ofunsuspicious persons, there must be factual reason to believe that the datasought is in the mailbox under surveillance

- on the other hand, the data stored may only be intercepted once repeatedsearches would not be in keeping with the judge's legally prescribed obligationto exercise his discretion (examination by a judge of intrusion into the legallyprotected sphere of a person).

The second question concerns the evidential value of chance findings in thecourse of wiretapping ordered and carried out in another country. The relevanceof this problem becomes apparent when one considers that, in Germany in 1999,


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the almost 7,777 suspects in penal proceedings in the field of organized crimecame from 94 different nations, 58% of the suspects were of foreign nationalityand 77% of the investigations analysed there were international connections.

Under German procedural law, wiretapping may only be ordered if there arefactual reasons to suspect that someone has committed certain crimes(catalogued) as the perpetrator or as a person involved and if a judge hasissued the warrant (in cases of "impending danger", a public prosecutor canissue the warrant, but must obtain the judge's confirmation within three days.In the literature (cf. Zietsch, Telefonüberwachung, Kriminalistik 1996, pp.129-131), it is assumed that chance findings may be admitted as evidence ifthe wiretapping was also approved by a judge in the foreign country and ifthe crimes coming to light through the wiretapping and going beyond theactual reason for the wiretapping are included in the catalogue of crimes forwhich wiretapping may be considered.


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Victim Compensation in Asia: ItsDevelopment and Imperatives

5)Tatsuya Ota*

I. Introduction

Many countries have established state compensation for crime victims sinceNew Zealand passed the Criminal Injuries Compensation Act in 1963. As aresult, victim movement has gradually shifted from financial assistance ofvictims to the legal status of victims in criminal procedure, especially since1980s. In that sense, victim compensation has come to the out-of-date topicof victimology or victim assistance. Also in Japan, little attention has beenpaid to the improvement of the Crime Victim Benefits Payment System sinceits introduction in 1980 in spite of many problems. It seemed as if it wereenough if victim compensation would exist. Instead, the legal protection ofvictims in criminal procedure has been the main subject of controversy overthe last decade in Japan. However, Japanese Government began to reviewthe Crime Victim Benefits Payment System for the amendment of the relatedAct in 2000 at last. The purpose of this paper is to point out the problemsfaced by Crime Victim Benefits Payment System in Japan and to suggestsome ideas of improvement with reference to the recent development of victimcompensation systems in Asia, which are not less practical than the systemsin western countries.* Associate Professor Faculty of Law, Keio University


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II. The Development of Victim Compensation in Asia

Victim compensation systems are now operative in 6 Asian countriesor areas, Hong Kong, Japan, Korea, Philippine, Taiwan and India (onlyTamil Nadu State).The first victim compensation in Asia was set up in Hong Kong in 1973under British rule. The Criminal and Law Enforcement Injuries CompensationScheme is not based on a statute like British scheme, but ex gratiacompensation run on the administrative level. The Scheme, which consistsof burial grant, death grant, disability grant, injury grant and interimmaintenance grant, has been improved and expanded repeatedly to meetvictims needs since its introduction. Besides, the Hong Kong VictimsCharter, which was launched in 1996, came to declare victims right tostate compensation as well as other victims rights.Japan became the second Asian country that set up victimcompensation when the Parliament passed Crime Victim BenefitsPayment Act in 1980, which was come into forth in the following year.The ex gratia compensation system, which consists of bereaved benefitsand disability benefits, has been basically maintained up to now exceptraising the maximum amount of benefits three times, namely in 1982,1987 and 1994.South Korea followed these two countries by enacting Crime VictimRelief Act in 1987. It is noteworthy that a provision on victim assistancewas added to the new National Constitution in the same year. The Actitself was come into force in 1988 and amended in 1990 to extend itsscope of application to victims who were victimized as a result oflending collaboration to criminal justice authority in the course ofinvestigation or trial for case of their own or third persons. Koreanvictim compensation consists of bereaved benefits and disability benefits,like Japanese system. But, its approach is significantly different from


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Japanese one because the former adopts social welfare or social securityapproach, which is, for instance, reflected in the eligibility ofcompensation that offenders must be unknown or have no means, andvictims are hard to make a living.In 1980s, these three compensation systems were operative in Asia, butin 1990s, two more Asian countries commenced victim compensationsystem, namely Philippines and Taiwan.In Philippines, so-called Victims of Unjust Imprisonment and ViolentCrimes Act was passed in 1992 to provide compensation not only tovictim of violent crimes but also to victims of unjust imprisonment ordetention. Different from Hong Kong and Japanese compensation as exgratia, Philippine system takes reimbursement approach aimed toreimburse the actual expenses incurred for hospitalization, medical treatment,loss of wage, loss of support, or other expenses directly related to theinjury. Although the maximum amount of compensation is limited to US$230, the establishment of victim compensation in Philippines is of specialsignificance for development of victim assistance in many countriesfacing financial problem, since it had been said that victim compensationsystem is infeasible in those countries due to the lack of governmentbudget. In spite of the fact that the Philippine economy is not necessarilyin optimistic situation, the Government marked a great step in history ofvictim assistance. Moreover, in Philippines, Witness Protection, Securityand Benefit Program Act was enacted in 1991 to provide financialsupport as well as personal protection to witness.Taiwanese victim compensation, which was established by CrimeVictim Protection Act 1998, also adopts reimbursement approach, wherevictims or bereaved families can claim for expenses of medical treatment,loss of earning and loss of maintenance as bereaved benefits or seriousinjury benefits.Thailand and India are also initiating the effort to establish victim


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compensation. It is reported that the Crime Victim and DefendantCompensation Bill was laid in Thai Parliament. In India, the State ofTami Nadu commenced Victim Assistance Fund in 1995. The scheme runby state police is applicable only in the said State. That is the reasonwhy a national movement has recently been performed in India toestablish nation-wide victim compensation system. Indian Society ofVictimology is taking initiative in preparing the draft of Victim (CriminalInjury) Assistance Right Bill, which has already been submitted to theGovernment for reference.

III. Problems and Imperatives of Victim Compensation

1. Basic Concept of Victim Compensation

The aim of the Crime Victim Benefits Payment System in Japan is toimprove the plight of victims of serious violent crimes by awarding lumpsum benefits as ex gratia or benevolence, not for the State to makereparation for damage victim suffered. In other words, Japanese systemis based on the spirit of social solidarity rather than on state reparationapproach.Korean Constitution provides the State obligation to offer relief to thecitizens inflicted death or injuries by criminal conduct. However, KoreanCrime Victim Relief System itself adopts social welfare or social securityapproach, which is reflected in the eligibility that victims cannot receivedamages from their offenders because the offenders are unknown or haveno means, and victims are hard to make a living.In contrast, Taiwanese and Philippine victim compensations are aimed toreimburse the actual loss inflicted on victims, while the administrations arenot necessarily clear.Recently, some Japanese commentators just resumed reestimating state


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reparation approach as a concept of victim compensation that the stateshould bear direct responsibility for compensating damage inflicted onvictims as a result of crime. Its intention seems to be to ensurecompensation toward victims by clarifying the state responsibility andobligation. Such an approach, to be sure, is attractive in the symbolicmeaning, but its theoretical problems pointed out in the past are notovercome yet.Although no victim compensation based on pure reparation approach existsin the world, Philippine and Taiwanese systems adopt reimbursementapproach, where victims can apply for and receive compensation for theactual loss inflicted. This kind of system is quite rational and practical at aglance, but it seems to be denied that there are budgetary limitation andheavy administration burden. In addition, the approach does not necessarilyguarantee higher compensation to victims because it usually covers onlyactual loss inflicted on victims, like hospitalization, medical treatment andso on.A welfare approach is ideal in a sense if it is thorough enough, but itis hard to give answer how much and how long compensation should beawarded. In other words, the boundary between victim compensationsystem and social security system become unclear if this approach isadopted. Moreover, compensation based on the welfare approach dose notguarantee better financial support for victims than ex gratia approachbecause the former awards only necessary compensation only to poorvictims who cannot lead a life without it. For example, no compensationcan be paid to student victims or elder victims who has no income, whocan be still eligible according to ex gratia system.It can be concluded that ex gratia approach can, at least in practice,work efficiently and effectively to improve victims financial plight, as faras the amount of benefits is reviewed periodically, referring to priceindex, other official benefits.


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2. Extent of Injury or Disability

In Japan, disability benefits are payable only to victim who sufferedfrom serious "disability" (not just "injury") as consequence of criminalinjury, namely 4th degree of disability or above. As a result, most ofbenefits have been paid to bereaved families as bereaved benefits. It issurprising that only 65 victims (applicants) received disability benefits for18 years since the enforcement of the System, whereas 3,897 bereavedfamilies (applicants) were paid bereaved benefits. This results from thebasic concept of the legislation that financial support toward bereavedfamilies should be given priority. The concept might have been valid astemporary policy after the introduction of the system, but should bereviewed today after almost two decades enforcement.The same problem applied in Korean system, which makes only 3rddegree disability object of disability benefits. Taiwanese system is alsoapplicable only to victims of serious injury, which means incurable orhard treated injuries, although this still leaves room for expanding itsapplication by a stretch of the provision. In contrast, victim compensationin Hong Kong are payable if the injury gave rise to at least 3 days lossof earnings or earning capacity, although it should be taken intoconsideration that Hong Kong scheme has injury grant, of whichminimum amount is very low.Anyway, the eligibility of disability benefits in Japan is too narrow toimprove the financial plight of many victims suffering from substantialinjuries. The eligibility of disability benefits should be expanded to coverminor disability as well as grave injuries without any disability thatneeds a long in-patient treatment at hospital.


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3. Victims of Sexual Violence

Financial support for victims of sexual violence is another problem. InJapan, victims of sexual offences without any physical damage cannot beawarded benefits as far as the criminal conduct does not cause a seriousfunctional disturbance to nervous system (or internal organs) or mentaldisturbance, because of which victim cannot be engaged in labor exceptvery light labor, and the activities in daily life are under tight restriction.This requirement is so strict that there is no victim of sexual offenceswho have been paid disability benefits in the history of Japanese CrimeVictim Benefits Payment System.From this point of view, Philippine and Hong Kong systems arenoteworthy. Philippine Victims of Unjust Imprisonment and Violent CrimesAct, which was enacted under former President Collason Aquinoadministration, covers victims of rape as well as other violent crimes thatresulted in serious psychological injuries, insanity or serious trauma.Hong Kong scheme is more attractive, where the total compensation(but, only injury grant, interim maintenance grant and disability grant)for victims of rape may be increased by up to 100% based on thediscretion of Criminal Injuries Compensation Board. Taiwanese systemmight be difficult to award compensation to victims suffering from mentalinjuries only. However, Sexual Offence Prevention Act enacted in Taiwanin 1997 established special grant for medical treatment, mental rehabilitation,legal counsel and litigation cost for victims of sexual offence. The grantsystem is maintained on the budget of local government in comparison tovictim compensation covered by National Budget.To take into consideration the recent research findings that revealvictims of sexual offences are suffering from not only mental injuries butalso humiliating and relatively heavy financial loss due to termination,counseling, move and change of job, victims of sexual offences, especially,rape should be also compensated by expanding the degree of disability.


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4. Criminal Negligent Case

In Asia, Taiwan is the only country where compensation can be paidto victims of criminal negligent case. This is because there was nocompulsory car insurance system at the time of drafting the Bill in spiteof the frequency of traffic accidents. However, since Compulsory MotorVehicle Insurance Act was enacted in 1996 and came into force in 1998,victims of traffic accident can accept either victim compensation or carinsurance under the no-double-compensation rule.Victims of criminal negligence are ineligible for benefits in Japan. Themain reason of such an exclusion is that other official benefits systemsare available to victims of (professional) negligent cases like CompulsoryCar Accident Insurance, and priority should be given over more pitiablevictims of intentional criminal conduct. Moreover, it is also said thatcriminal negligent case can be treated in practice because intention ofoffender can be flexibly interpreted in examining applications of benefits(for instance, the case of victim who hit on a suicide falling frombuilding). However, not all victims of criminal negligence can be coveredby other official benefits system. And the explanation that victims ofcriminal negligence are less pitiable also seems untenable. It is the futureimperative to expand the object of victim benefits to criminal negligentcases except traffic accident.

5. Family Violence

In Japan, benefits cannot be paid where blood or marriage relationshipexists between victims and offenders, unless the special condition existsthat nonpayment is inappropriate according to common sense. Thisprinciple is adopted, not only because it is difficult to prove preciselywhat has happened in the family and to avoid the danger of collusion to


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obtain benefits (but this reason does not necessarily apply to Japanesesystem where the eligibility is limited to quite serious victimization), butalso because it is more difficult to eliminate totally a risk that paymentof benefits will eventually benefit the offender. It cannot be denied,however, that such an exclusion of family violence victims may causeinjustice to the victims. Moreover, it is questionable and unconvincingwhy the amount of benefits has to be reduced by twothirds even in thecase that benefits are exceptionally paid to victims of family violence.The same principle is adopted in Korean system. But, it is better onthe point that benefits may be paid partially in the case of exceptionalpayment for family violence case. The related provisions of TaiwaneseCrime Victim Protection Act regarding the non-payment are quite similarto those of Japanese Crime Victims Benefits Act because the latter wasconsulted at the enactment of the former. However, what is unique toTaiwanese system is that a provision on exclusion of family violence is notfound there. It is estimated that the decision whether benefits should bepaid to victims of family cases are left to the Boards discretion based onthe general provision on nonpayment to inappropriate case. In contrast, HonKong scheme leaves more room for payment of compensation to familyviolence cases. According to a new guideline adopted in 1982, compensationcan be paid to the victims who were living with the offender at the timeof occurrence if the offender has been prosecuted for the said offence andthe Board is satisfied that it is in the interests of the victims.In Japan, the rule regarding family violence should be reviewed. Itmight be one idea to absorb the family violence rule into the generalrule of nonpayment toward inappropriate case. At least, the automatictwothirds reduction of the benefits for family violence case should beabolished to leave the amount to the discretion of the Board. Specificarrangement for the payment of benefits is another idea, for example,trusts, payment by installments, which are introduced in Taiwan.


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6. Foreigner Victims and Japanese Victims in Foreign Countries

Japanese system is applicable to foreigners living in the Japan.However, where a person of foreign nationality was murdered and his/herbereaved families are not living in Japan, they are not eligible for bereavedbenefits. Those families are also ineligible for victim compensation of theirown country because victim compensation in each country is usuallyapplicable to the cases occurred inside the country. Such families cannotaccept any financial support in the chasm of system between twocountries.On the other hand, the more Japanese visit foreign countries, the moreoften they are involved in crime victimization. But, Japanese victimizedin foreign countries are ineligible for Japanese Crime Victim BenefitsPayment System. As a consequence, it depends on the victim compensationsystem of the said foreign country whether they can get official financialsupport. For instance, both Korean Crime Victim Relief Act and TaiwaneseCrime Victim Protection Act are only applicable to victims of foreignnationality on the basis of reciprocity. Accordingly, there is no guaranteethat Japanese victims in both countries can be paid compensation fromthose Governments.To take all these situations into account, a bereaved family of foreignnationality not living in the Japan should be granted eligibility undercertain conditions. However, more discussions are needed to dissolvesome legal-technical problems including way of contact with family,amount of benefits, risk of collusive or fraudulent claim, and so on. Onthe other hand, Japanese system should be applied to Japanese victimizedabroad where enough evidence is available to prove that death or injuryresults from criminal conduct.

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