Confession (law)
From a confession is generally speaking, if someone gives a specific situation, which is laid to his charge. Especially applies in the litigation as a confession if one party declared that factual allegations of the opponent's true that are unfavorable for the party.
General
In Litigation various pieces of evidence are admitted. There is real evidence ( documents, traces, adapted devices, Tatbeute and inspection ) and personal evidence ( witnesses and experts). Confessions are thus formally not provided as evidence, however, apply as a personal evidence. It belongs only to the evidence in the wider sense, because at the trial the evidence only after the examination of the defendant ( § 244 para 1 CCP ) takes place.
History
The confession was the Inquisition process of Roman law as the " Confessio est regina probationum ", the "queen of evidence ." However, this overestimation of the confession resulted in Inquisition processes mean that they wanted to bring about a confession in every case. Lag a confession before, the consideration of other (including exculpatory ) evidence was excluded. It was not to be wondered at, that in this central position of the confession torture was used to enforce a self-confessed enter an appearance. The fourth Lateran Council from 1215 has spawned the modern form of religious confession. The torture to extract confessions had been abolished in 1776. Abraham Saur was the opposite view that a confession is not proof. The German law is sometimes considerably moved away from the idea as the best evidence.
Species
Depending on the content and scope of a confessed enter an appearance, there are various types of confessions. If a party puts forward the self unfavorable for them facts before the other party has claimed it, it is called an anticipated ( anticipated) confession. To confess the anticipated confession is only when the opponent picks it. The full confession is characterized by a full responsibility over of all alleged plot elements. A confession so the accusation does not fully cover, not all plot elements and is called a partial confession. The qualified confession is characterized by a complete, detailed and vivid description of all subsumtionsrelevanten facts. When qualified confession an objection is made, which is not part of the claim is based standard; it is provided with restrictions or additives. Under slim confession is understood since 1988, a confession, in which only the result of the investigation will be confirmed at the trial. It plays an important role, especially in communicating in criminal proceedings. The collusive confession is stored at a time, at which the court is not convinced of the guilt of the accused. With this, the evidence is shortened with respect to the alleged offense or even deleted. A confession about shooting ( "overcharging confession " ) produces straferschwerende circumstances and facing offenses that were not detected without the explanation. The coerced confession ( "forced confession " ) has been caused by duress, torture or enhanced interrogation techniques.
Along the perimeter can also personal confessions, after Beweiserheblichkeit be distinguished the truth and its communication form. The confession of a suspect, accused, the accused or defendants may come as personal.
Civil Procedure
In civil proceedings, the confession is the Conceding the correctness of a statement of fact of the opponent process. According to § 288 ZPO only facts can be recognized as a confession. A mere failure to contest opposing assertions is not a confession. Because of the far reaching consequences of a confession is in doubt to accept his, that a party who put forward by the opponents and unfavorable for them facts that they do not explicitly denies does not admit, but just does not want to deny. The confession can be connected with additions or restrictions ( qualified confession; § 289 paragraph 2 ZPO). A confession can first put forward in the application (anticipated confession ), but must be submitted no later than at the hearing. It is sufficient if it is contained in the pleading and is incorporated by reference pursuant to § 137 para 3 ZPO ( log note) the subject of the hearing. It need not be express, but can also be determined by interpretation of the process lecture.
With a confession certain legal effects are connected. The civil litigation is unnecessary by a confession of inquiry. The conceded fact needs no proof and is taken as a basis by the court in the judgment to be true. It unfolds for the declarant binding effects also on appeal ( § 535 ZPO). Confessions are only effective against the one who did it ( " confessio alterius alii non praejudicat "; § 61 ZPO). A confession from a criminal case unfolds in a civil case not the effects of § § 288, 290 ZPO, but is within the scope of free evaluation of evidence according to § 286 ZPO an important indication of the truth of the conceded facts represents a written confession is civil procedural law, the exception ( § § 128, Section 2, § 251, § 331a ZPO).
Criminal
Confession here is the conceding of the alleged offense by the accused. The importance of a confession lies in the fact that an accused person makes Tata gifts that can be known only to him. It is for the court, the " search for the truth of its own motion to operate " (§ 244 para 2 CCP). The court is due to the free evaluation of evidence not tied to the confession ( § 261 Code of Criminal Procedure ). It is according to the prevailing opinion evidence which the free judicial evaluation of evidence pursuant to § 261 Code of Criminal Procedure subject. For this purpose, already the Supreme Court (RG) has stressed that the confession as well as other conduct of the defendants were factual issues and thus from the trial to adding free judicial evaluation of evidence and belief formation ( § 261 Code of Criminal Procedure ) are accessible.
The police is authorized in criminal proceedings, to work towards a confession; the barriers this can be found in § 343 of the Criminal Code ( extortion of statements ). A program stored before the main hearing about the police confession can be introduced only with quasi-judicial derivative action under the procedure ( § 254 para 1 CCP ). Evidence is then based on the judge's derivative action made by the accused statement. The confession is a process of action, so that the declarant must be postulationsfähig. A program stored only at the trial confession of the accused is only one of many possible sources for the study of the true facts dar. On the other hand, it is not impossible to convict a defendant solely on the basis of his confession. The confession is according to § 257c paragraph 2, sentence 2, CCP no mandatory requirement for the assurance of a criminal setting lower and upper limit in the context of an understanding. A prohibition on the use is pursuant to § 136a paragraph 3, sentence 2 Code of Criminal Procedure of confessions that have come through violation of evidence rules materialize as deception, threat, coercion, abuse, fatigue, or by artificially influencing the formation of free will. Even the promise of - not legally provided for - advantages is prohibited. Furthermore, the omission of the statutory policy may ( § 136 para 1 CCP ) lead to the prohibition on the use of confessions, as when the defendant was not advised of his right to remain silent.
The examination of the defendant ( enter an appearance, confession ) is not a proof in the strict sense, a statement can be taken as evidence. Although the confession is not explicitly mentioned as a sentencing criterion in § 46 of the Criminal Code, in practice, it plays a major role. Also in the Supreme Court, the mitigating effect of a ( tactical ) confession is recognized in principle.
Revocation
Through a confession the gesture existing party is generally bound. There is disagreement in civil proceedings, whether consciously untrue confession because of the importance of the duty of truth contrary to § 290 ZPO may at any time be revoked. The Supreme Court in any case rejected a revocation. A revocation is valid only if the party can prove that the confession made is objectively wrong and is based on a mistake ( § 290 ZPO). Criminal legally valid, that the revocation does not eliminate the confession and the courts have to deal in detail with the conclusion of the earlier confession in a revocation. Apart from the illegally obtained must be the former - find the accused input in the judicial evaluation of evidence information - possibly ill. Here, the subsequent revocation is checked for plausibility.
Internationally
In Austria, a confession is considered as mitigation of punishment pursuant to § 34 Section 1 No. 17 ÖStGB ". A mitigating circumstance is especially true if the offender has a repentant confession or contributed by his statement substantially to the truth " In Switzerland, Article 48d of the Criminal Code (CH ) provides that the court mitigates the punishment, " if the offender operated sincere repentance, namely the damage, unless it was expected of him, has replaced. "
Also in the American criminal procedure of inquiry is not necessary with the confession or already the mere failure to contest and classified the conceded fact as proven. The " guilty plea " ( confession ) opened the way to a simplified procedure in the U.S. criminal trial. In Germany, however, the confession is merely evidence of the guilt of the accused. In Japan, it is constitutionally expressly forbidden to base a conviction solely on the confession of the accused. Under English law, it is forbidden the police to work for a confession. Even seemingly harmless phrases like " it might be better for you to tell the truth than to lie " are not permitted.