A comment by wolfgang neskovic to the investigation in the nsa affar
Well. In the last second, generalbundesanwalt range has pulled the emergency brake and now wants to initiate a criminal preliminary investigation for mysterious spah activities in germany. However, he wants to restrict his investigation only to the dependencing because of the chancellor’s phones, during the political and also long-preamble scandalosis, which is to fall in particularly scandalosis, which should fall below the table of communication behavior of the german population (for the time being). This decision must not be the last word. A blessed lawyer – one of the top glosses of the right – is nothing in his office when he makes such a legal crawler before a foreign power. In his highlighted position as a representative of the law he has to show stability when it comes to enforcing the claim of the right against the mitigation of power.
The ancient conflict between power and right must be decided straight from it in favor of the right. The power of the law must always be stronger in a constitutional state than the power of power. Judges and prosecutors who do not have the heart and courage to follow these professional-seen and penetration of polar stars have missed their profession.
For the criminal processing of the spah activities of the nsa, this is called:
Especially when the most important political actors (chancellor, federal government and majority fractions in the bundestag) occur in the declaration on the brake and insert the ruck waiting point, the general federal agency must set a sign as a representative of the right and with the means of the right of law for compliance with the right. Instead, he will not see a determined declaration of declaration and gives the impression that they had to hunt him.
His entire preliminary investigation was interpreted from the beginning of anxious zoomality, although after the first enthusiasts of snowden was unused, that – amed the facts in the press to meet – the offense of the intelligence agent (§ 99 criminal code) was filled with. This provision not only protects state security in aviation and security policy, but also general policy and even socio-political information, unless these are classified as interesting only by foreign intelligence services. Thereafter, the expiring activities of the nsa are against the chancellor, but also the essentials against the remainder of the population is fundamentally appropriate to fulfill the offense of intelligence agent. This can be directed hard penalty. In particularly heavy falls, the punishment is sufficient up to ten years.
For the initiation of a preliminary investigation because of this offense, the general federal lawyer is stateful. According to the criminal procedure, he may only initiate a preliminary investigation if a so-called initial suspicion is available for this offense. There are three different types of suspected in the criminal procedure. The lowest level is the initial suspicion. This is given if "prepare actual indications" exist for a criminal offense (§ 152 criminal procedure regulations).
Those are given when the "opportunity" a criminal act. So it does not depend on the initiation of a preliminary investigation whether the prosecutor’s office is probably awarded a later condemnation for or even for most likely, but it involves whether – due to certain "actual indications" – the "opportunity" a criminal act is given.
The hurde for the initiation of a preliminary investigation is therefore pretty low. Only in the preliminary investigation decides whether the initial suspicion justifies an indictment or to set the procedure. The task of the preliminary investigation is therefore, in particular with the forced funds provided for in the criminal procedure regulations (eg.B. Confiscation, searches, witnesses, etc.) to demand facts for days ("to investigate"), which the prosecutor has a decision on the prosecution or attitude. Also, from this objective of the preliminary investigation, it is clear that an estimated forecast for the outcome of the procedure in the question of whether there is an initial suspicion is principally meaningless.
Measured at this legal starting position, the behavior of range deserves sharp criticism.
His decision to differentiate between the dependent of the chancellor’s phenetian and relatives of the communication behavior of the remaining bundesburger is in a broad publicity rightly tailored to interpretation and crowds. For justification herfur he caught that "so far, no substantial indications of concrete criminal acts or criminal laws" templates. The prerequisites had "to date, no findings are provided by whether and how british or us intelligence services in germany access or deliberately access telecommunications and internet traffic with electronic means".