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5 Info. & Comm. Tech. L. 5 (1996)

handle is hein.journals/infctel5 and id is 1 raw text is: Information & Communications Technology Law, Vol. 5, No. 1, 1996

Controlling Computer Crime in Germany
SIGMUND P. MARTIN
Philipps-U.niversitit Marburg, Institut filr Veifahrensrecht, Savignyhaus, Universitatsstrasse 6,
D-35037 Marburg, Germany
ABSTRAct The main means employed to fight growing computer misuse in Germany
has been to invoke the use of criminal law. This article details the relevant provisions of
substantive German criminal law and discusses the emerging problems in criminal
procedure and in the practice of prosecuting computer crime. The term 'computer crime'
and its meaning in criminal law and legal theory are also described in greater detail. The
approach adopted by the German legislature to fight computer crime, which is character-
ized by using very complex and special statutes, enacted parallel to existing and less
complex traditional statutes is criticized. This article argues that within the vast field of
computer crime, two types of offences should be differentiated. The first group comprises
offences which are accidentally committed by using a computer, while the second group
consists of crimes that structurally did not exist before. It is argued that in respect of
this second category of 'real computer crime'--and in light of the emerging problems in
criminal procedure-a new paradigm of information law is needed.
The problem
In Germany, criminal law is the basic legal tool employed to fight growing
computer misuse. This is true, both with regard to legislative initiatives, and
with regard to enforcing the law in practice. Special provisions to deal with
computer crimes were created in 1986 with the enactment of the 'Second Act to
Combat Economic Crime'.' This amendment, which essentially created some
new provisions in substantive criminal law, constituted computer crime as a
special form of crime. The first cases appeared in the German Police Criminal
Statistics2 in 1987, with roughly 3000 cases. The latest available figures from the
same statistics show about 21 000 cases in 1994. Obviously, this increase is
largely due to the general increase of computer use in daily life. By the same
measure, computers are also used more and more for criminal acts.
Another major reason for the increase in the number of cases stems from the
widespread practice of German lawyers to 'free ride' the resources of the police
and the public prosecutor. To prevent clients from spending a lot of money in
private law suits, they advise them to accuse the other party formally of a crime
first. When such a complaint is filed, the prosecutor, in most cases, is obliged to
start investigations.3 If the guilty party is finally convicted of an offence, the
ruling in the criminal case makes it highly likely that the injured party will also
succeed in the ensuing private law suit. Even if the prosecutor fails to bring the
case to a criminal court, the investigations undertaken by the prosecutor and the
police will be useful for the injured party. The investigations may produce
useful information, and will, in any case, put pressure on the other party.

1360-0834/96/010005-24  @ 1996 Journals Oxford Ltd

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