The research project deals with the application and realization of the legal regulations of the “screen search”. The project occurs within the wider context of empirical criminal research which seeks to analyse the implementation and evaluation of new, proactive, investigative methods. The main topic of this project takes the form of an evaluation of investigative files from the German Office of the Public Prosecutor. On the basis of this file analysis, questions will be examined regarding the effects and the legal reality of screen searches. Furthermore, interviews with experts from the police and judiciary are also planned.

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.