[Grading the level of suspicion in criminal proceedings, restrictions of the proportionality principle and veto options in forensic autopsies].
The article deals with two topics: determination of the necessary level of suspicion for an internal post-mortem examination pursuant to Section 87 (German) Code of Criminal Procedure and options of the family to object to the forensic autopsy. The level of suspicion required in this case is to be regarded as very low, even below that of the initial suspicion, because a detailed opinion as to any third-party fault can only be given after completion of the autopsy. The individual concerned does not have a right to oppose a forensic autopsy while still alive. The same applies to the family. Other than in clinical autopsies, the interest in prosecution is to be considered the higher good to be protected, because at the time of deciding a homicide cannot be ruled out and only an internal examination can furnish the necessary evidence. Consequently, it is appropriate. Contrary to the opinion often expressed in the literature, one cannot infer from the provisions of Sections 87 subs. 4, 33 subs. 3 Code of Criminal Procedure and Section 103 subs. 3 Basic Law that the family of the deceased has a right to be informed or heard. This can only be changed by the legislator in an amendment to the autopsy law.
Czerner
Frank
F
Aus dem Institut für Kriminologie der Universität Tübingen.
D000328:Adult; D001344:Autopsy / Q000331:legislation & jurisprudence*; D002423:Cause of Death; D002648:Child; D005104:Expert Testimony / Q000331:legislation & jurisprudence; D005858:Germany; D006708:Homicide / Q000331:legislation & jurisprudence*; D006801:Humans; D007258:Informed Consent / Q000331:legislation & jurisprudence; D033282:Parental Consent / Q000331:legislation & jurisprudence