Max Planck Institute for Foreign and International Criminal Law

Project Description:

An empirical examination concerning the application structures and effects of preventive and repressive information that arise through the use of screen searches.

As mentioned, the implementation and evaluation of the screen search is the present research objective of this project. After the terror attacks of September 11, the use of screen searches caused a great deal of politico-legal controversy. In Germany, screen search methodology was developed at the beginning of the 1970s and was primarily used in the prosecution of the RAF (Red Army Faction). Screen searches make use of modern data processing abilities for the purposes of prosecution and public protection. Because all personal attributes and circumstances are able to be linked in such a procedure, the screen research is labelled as an all-purpose investigation instrument. That said, in some of the literature, the screen search has been called a ponderous instrument with more prestigious than practical relevance. In the eyes of those concerned with data protection, considerable misgivings exist, particularly with regard to questions of constitutional compatibility.

In opposition to this view, the screen search has received some legislative recognition. It was mentioned in the Code of Criminal Procedure (§§ 98a, b StPO) through the Law on the Fight Against the Illegal Drug Trade and other Manifestations of Organized Crime (OrgKG) of 15 July, 1992. Furthermore, several different types of screen searches can be found in the police laws of the various German federal states. At present, all these laws contain rules concerning data synchronisation, though some of these laws were not inserted until after the attacks of September 11. In view of the politico-legal discussions surrounding the screen search, the project will investigate the application and effectiveness of such searches. This presupposes an evaluation of the application of the previously mentioned §§ 98a, b Code of Criminal Procedure and of the corresponding rules of the police laws of the German states.

An analysis of a number of already completed investigations in which screen searches were executed form the core of the present project. Based upon the low number of cases carried out in the repressive area, the analysis is applied as a full evaluation. The reception of the investigation method in 1992 forms the temporal starting point for the full evaluation of the data. As its starting point, the data evaluation in the preventative area takes the respective introduction into force of the police laws in the German federal states. In addition, interviews with experts from the police, the Office of the Public Prosecutor and the courts will be added. That the experts already possess concrete experience with screen searches is a prerequisite for their selection.

In an initial step, the current state of research (empirical and prescriptive) was evaluated. Systematically determined empirical results of the application and the effect of screen searches are however not yet available. In addition, a questionnaire was produced to identify the procedures required for a screen search and to order the corresponding procedural files. Analysis of these files began in autumn 2005. At present the exact number of executed screen searches remains unknown, because some feedback from the Office of the Public Prosecutor remains outstanding. However, the number is expected to total around 30 procedures (in the repressive area). The expert interviews are planned to take place after the evaluation of the prosecution files has been carried out.

Essential Results of the Study:

A total of 30 procedures conducted under §§ 98a, b were identified. The present study used data from 27 of these. The remaining 3 procedures could not be used as they were ongoing. It can be concluded from the figures that screen searches have only been used sporadically since their inclusion in the Code of Criminal Procedure. They have mainly been used in the investigation of murders, sexual offences and serial crimes. As such, their use in the broader area of serious crime is relatively limited.

When distributing the 27 procedures across a timeline beginning with the introduction of the measures in the Code of Criminal Procedure, a significant increase in procedures can be seen from 2002 onwards. The reasons for this include an increased acceptance of the procedures, greatly improved technical capabilities and the general growth of data collection across all walks of life.

31 §§ 98a, b measures were identified in the analysis of the 27 procedures. In 23 of the procedures only one measure was conducted, in the other four that number was two. The measures mainly consist of several orders. Overall, 31 measures were made consisting of 62 orders.

The measures were usually initiated by the investigating police department. Due to the different investigative stand of each process, the timing of the orders was often different. The period between the beginning of an investigation and the ordering of measures varied between 1 and 1247 days. The median was 62 days.

The objectives of the screen searches were only concretely formulated in exceptional circumstances. Generally the proposals incorporated a part of the legal text as the stated goal. Over the course of the investigation a steady decline in the actual grounds for the measures could be seen amongst the police, public prosecutors and courts. In more than 60% of cases, the measures were ordered using a pro-forma duplicate from the Public Prosecutor’s Office. Separate grounds were not touched upon by the requisite courts in these cases. Consequently, the courts can be seen as providing a formal “rubber stamp”. Judicial review in this area is inadequate and needs to be increased.

In evaluating the success of the screen search measures, 13% could be considered at successful and a further 58% as mostly successful. For an additional 13% of the measures no data was available, and the remaining 16% were classified as unsuccessful. Overall, two-thirds of screen searches brought about new approaches to the investigations. However, these only met with sporadic successes. In only four measures did these new approaches lead to the successful apprehension of offenders.

The greatest strength of screen searches lies in the area of DNA sequencing. In this context, it enables the prioritization of certain subgroups and the efficient implementation of examinations. It is only in this area that screen searches have been successfully applied.

It was also observed that the notification of data protection officers and those individuals under examination did not occur. The statutory scheme fails to provide for which regulatory agencies should be notified. As a result there is disaccord between investigating authorities as to the responsibility to notify.

Ultimately it was determined that issues of privacy and the cost of the measure involved only play a subordinate role. Information concerning the deletion of data was only sporadically available. Even less information was available as to costs. Assessments based on economic aspects only took place occasionally. Much more attention was devoted to follow-up measures, such as DNA sequence investigations and the financial expenses involved in such decisions.