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Preventing Crime by Provoking Crime? (From Polizei und strafprozess im demokratischen rechtsstaat, P 238-255, 1978, Erhard Denninger and Klaus Luederssen - See NCJ-72399)

NCJ Number
K Luederssen
Date Published
18 pages
The uncertain position of the 'agent provocateur or police decoy,' in West German criminal proceedings and law is discussed in this paper.
The use of such undercover agents, whether they be police personnel or civilians, is increasing in Europe, especially since the rise in international crime sometimes calls for unorthodox responses from law enforcement agencies. Such agents often provoke an offender to commit an act which is in itself criminal or which may facilitate his apprehension. Unlike the United States, the Federal Republic of Germany does not have an established doctrine of entrapment which would forbid the use, in criminal proceedings, of incriminating evidence obtained throught the efforts of an 'agent provocateur.' However, the Code of Criminal Procedure does cover certain aspects of the use of such evidence. Section 81 rules out the use of incriminating evidence which law enforcement officers have obtained by means that are not expressly allowed them by law. The use of police decoys is not expressly allowed. The question of the acceptability of provocations which do not directly involve the obtaining of incriminating evidence is more difficult to answer. Section 136 is concerned with acts committed under duress, and the borderline between duress and the encouragement that an agent provocateur might offer is not clear. In addition, the same section forbids willful deceit that is intended to lead to criminal actions on the part of the deceived persons. In this case, the offenders are the deceived persons if the agent provoked them to commit criminal acts. Finally, the Constitution itself appears to forbid certain actions of such agents. Article One states that the dignity of man is inviolable and that the state is required to protect this dignity. The state is not fulfilling this requirement when its agents are provoking citizens to commit criminal acts. Article Two guarantees the right of the free development of the personality. The act of encouraging another to commit a crime amounts to an interference in this development. Court cases are cited, and a detailed study of a related court case is presented. Footnotes with references are included. --in German.


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