Criminal action, privacy and informative self-determination in the criminal prosecution of organized crime. An analysis from the perspective of German criminal procedural law

Abstract

The emergence and invigoration of organized crime in the past few decades of the 20th century have imposed a change in criminal investigation tools and regulation in many juridical aspects. The features of these instruments, as supported by the development of new technologies, make them diff erent from the classical investigative measures. In this article, the transformation of the German legal procedure is described by: I) analyzing the context from which the regulation of these new criminal investigation of organized crime instruments have emerged (A), studying their particular features (B), and deducting the general characteristics (C).

Subsequently, from the perspective of German doctrine and jurisprudence, a review is made of the meaning of two fundamental freedoms affected with the enforcement of these mechanisms: II) the right to privacy (A), and the right to informational self determination (B). How is it possible to reconcile the use of these investigative measures and the way they adversely affect the above-mentioned fundamental liberties or guarantees makes part of the third item (III) in this article, where the diff erent assumptions developed by German doctrine and jurisprudence are examined as to legitimize this type of interventions.

Then (IV), in a general manner, the structure developed by the German legislator concerning the regulation of the investigative measures analyzed herein, by taking into account the above assumptions seen in the foregoing section. Finally, the conclusions are aimed at reflecting about the importance of a structured regulation for any such investigation measures of secret nature and used in the prosecution of particular types of criminality like organized crime, the use of which entails very serious interference in fundamental rights.