Verhältnismäßigkeit strafprozessualer Zwangsmaßnahmen

The principle of proportionality, with its constituent elements of suitability, necessity, and proportionality in the strict sense, has been established by the Federal Constitutional Court over recent decades as the most important standard of review. It is also of great importance in the international context. At the same time, it is evident that the stage of proportionality in the strict sense in particular poses considerable difficulties, as there is a lack of rational standards for the balancing processes required at this stage, leading to frequent criticism of arbitrary outcomes. This, in turn, raises the question of how a higher degree of rationality can be achieved. This issue has long been the subject of lively debate, with many voices expressing skepticism or even resignation.
Mario Bachmann's work illustrates, using the example of coercive measures in criminal procedure, how the reliance on subjective value judgments in assessing the proportionality of laws and individual acts can be reduced. To this end, it examines the indicators relevant for balancing, both with regard to determining the intensity of the interference and the strength of the purpose pursued. The related question of the relative weight of these individual indicators is answered by presuming their equal rank. The subsequent examination of coercive measures under the Code of Criminal Procedure, applying the new approach in the fourth part of the work, not only demonstrates the practicality of the proposed method but also identifies areas where legislative action and further empirical research are needed.