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Germany: Undercover Agents and Self-Incrimination

(Dec. 2, 2007) On July 26, 2007, the German Federal Court of Justice (Bundesgerichtshof) (FCJ) held that an undercover agent may not persistently urge a suspect to confide in him as to whether he committed a crime and may not interrogate him as a police officer, if the suspect had already asserted his right to remain silent in police interrogations. The Court held that such conduct by the undercover agent violates the privilege against self-incrimination of the suspect (German Code of Criminal Procedure, i.e., Strafprozessordnung, re-promulgated Apr. 7, 1987, BUNDESGESETZBLATT I at 1074, as amended, § 136, ¶ 1), and, as a rule, makes evidence thus obtained inadmissible (Docket No. 3 StR 104/07, FCJ Web site,
). The decision quotes the Allen v. United Kingdom decision of the European Court of Human Rights (ECHR) (Nov. 5, 2002, application number 48539/99, ECHR official Web site). According to German commentators, the German case may be a departure from previous decisions of the Federal Court of Justice that had allowed evidence obtained by undercover agents under similar circumstances (H. Meyer-Mews, Anmerkung, 60 NEUE JURISTISCHE WOCHENSCHRIFT 3142 (2007)).