Federal Court of Justice (BGH): No violation of the prohibition of the obligation to self-incrimination 07 February 2020
- Created: 12 May 2020
BGH allows the exploitation of documents which were handed over by the responsible person himself within the scope of legal submission obligations. There is no violation of the prohibition of compulsory self-incrimination (nemo tenetur).
The Federal Court of Justice (BGH) allows the exploitation of documents which have been dutifully prepared outside of criminal proceedings and which have been handed over by the responsible person himself and does not see this as a violation of the prohibition of the obligation to self-incrimination.
For the purpose of a business audit, a notary had - in fulfilment of his statutory obligation to submit documents - first presented his files to the notary auditor and later to the President of the Regional Court. The documents revealed hundreds of instances of excessive fees. The notary was convicted of overcharging and disciplinary action was taken against him. Referring to a decision of the Federal Constitutional Court of 27.4.2010 - 2 BvL 13/07 (BVerfGK 17, 253, 264) on § 393 Paragraph 2, Sentence 2 of the 1977 Tax Code, the Federal Court of Justice declared both the obligation to submit and the exploitation for repressive purposes to be permissible. Statutory obligations to submit documents did not affect the core of the constitutionally protected freedom from self-incrimination even if the documents to be submitted could also be used to punish criminal offences or administrative offences, insofar as such obligations to cooperate were constitutionally justified for the protection of public welfare interests. This principle applied generally and not only in the area of tax law.
Based on the principles of this decision, one will also have to accept the exploitation of accounting documents handed over to the insolvency administrator not only in insolvency proceedings but also in subsequent investigation and criminal proceedings for insolvency offences and/or tax evasion.