The Use Of German Secret Investigation Measures And Its Rule Of Law

In Germany,the scope of secret investigation measures is clearly defined by German Code of Criminal Procedure.However,due to the development of science and technology and the need to protect fundamental rights,this scope is also constantly changing.This leds to the problem of what kind of secret investigation measures should be incorporated into the criminal procedure law and how to regulate it.There are three aspects which should be studied in terms of this issue: First,we can study the historical changes about the scope of secret investigation measures in German criminal proceedings,exploring the motives of this changes,and at the same time,discover their common characteristics by analyzing the various types of secret investigation measures stipulated in the current code,and finally,conclude factors that are taken into account by German legislators when secret investigation measures are incorporated into the criminal procedure law.Second,what should be also studied ist the institutional framework of the use of secret investigation measures in the current German Criminal Procedure Code,exploring the specific rules for the use of secret investigation measures,so that the question of “how to regulate”is answered from the perspective of procedural law;The third is to study the legalization of the regulation of secret investigation measures,that is,based on the theory of “Fundamental Rights Intervention”(in German: Grundrechtseingriff),we study the regulating mechanism of secret investigation measures,and explore the regulatory principles of secret investigation measures,in order to summarize the general pattern of judging whether a secret investigation measure is regulated and how to regulate.Throughout the process of introduction and change of secret investigation measures,we can find that,in addition to the influence of scientific and technological development,the scope of secret investigation measures is closely related to the establishment of fundamental rights and the development of legal reservation principles.The differences between the various types of secret investigation measures in the current German Criminal Procedure Code are not only the difference in secret investigation methods,but also the different fundamental rights that they intervene.From the perspective of the theory of “Fundamental Rights Intervention”,the analysis of secret investigation measures mainly refers to the analysis of the scope of fundamental rights,the intensity of intervention and the possibility of justified intervention according to the three levels of “protection scope of fundamental rights-interventionjustified intervention”.Thus,it is possible to explain the many rules in the secret investigation system.The regulation of secret investigation measures mainly comes from the requirements for the justified intervention of fundamental rights,mainly referring to the principle of legal reservation and the principle of proportionality.Based on the principle of legal reservation and the “threshold theory”(in German: Schwellentheorie)developed,some secret investigation measures with low intervention intensity can be included in the scope of secret investigation measures as defined by the German Criminal Procedure Law without the special authorization of the law.Based on the requirements of the proportional principle,it should be proportional between the applicable conditions of the measures and the intensity of the interventions of the measures,also between the intensity of the interventions of the measures and the procedural constraints.For this reason,the list of crimes,the degree of suspicion,the modest clauses and the principle of the retention of judges in the secret investigation system are divided in some levels.The theory of “Fundamental Rights Intervention” can also be applied when reviewing specific secret investigation measures.If it is considered to constitute an infringement of fundamental rights after the review,it will result in the prohibition of the evidence(in German: Beweisverbot).Only secret investigative measures that interfere with fundamental rights more seriously belong to the scope of secret investigative measures,whose procedural regulation should be followed by the principle of proportionality.After the research on the secret investigation system and the theory of “Fundamental Rights Intervention” in German criminal proceedings,it should be noted that,the rule of law in secret investigation,based on the theory of “Fundamental Rights Intervention”,takes omnibearing constitutional control over the following aspects: the legislation,the procedural regulation and the specific implementation and sanction.This is of great significance for the legislative design and mechanism of secret investigations in China.In general,we can draw on the ideas of the theory of “Fundamental Rights Intervention” and the useful experience of German secret investigation system design to improve the existing secret investigation system from three perspectives: the clarification of the scope of secret investigation measures,the elaboration of the procedure of secret investigation measures,and the resolution of the problem of the use of evidence,in order that the rule of law in secret investigation is further advanced.