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(2) The public prosecution office shall ascertain both incriminating and exonerating
circumstances and shall ensure that evidence the loss of which is to be feared is
taken.
(3) The public prosecution office shall also investigate those circumstances which
are important for the determination of the legal consequences of the act. To that
end, it may avail itself of the services of the court assistance agency.
(4) A measure shall be inadmissible if special provisions regulating its application,
being provisions under federal law or under the corresponding
Land
law, present an
obstacle thereto.
Section 160a
Measures directed at persons entitled to refuse testimony on professional grounds
(1) An investigation measure directed at a person designated in section 53 (1)
sentence 1 no. 1, 2 or 4, a lawyer or a non-lawyer provider of legal services who has
been admitted to a bar association shall be inadmissible if it is expected to produce
information in respect of which such person would have the right to refuse to testify.
Any information which is obtained nonetheless may not be used. Any recording of
such information is to be deleted without delay. The fact that the information was
obtained and deleted shall be included in the records. If information about a person
referred to in sentence 1 is obtained through an investigation measure which is not
aimed at such person and in respect of which such person may refuse to testify,
sentences 2 to 4 shall apply accordingly.
(2) Insofar as a person designated in section 53 (1) sentence 1 nos. 3 to 3b or no. 5
might be affected by an investigation measure and it is to be expected that
information would thereby be obtained in respect of which the person would have
the right to refuse to testify, this shall be given particular consideration in the context
of examining proportionality; if the proceedings do not concern an offence of
substantial significance, then, in principle, no overriding interest in prosecuting the
offence is to be presumed. Insofar as is expedient, the measure should be
dispensed with or, to the extent possible for this type of measure, restricted.
Sentence 1 shall apply accordingly to the use of information for evidential purposes.
Sentences 1 to 3 shall not apply to lawyers and non-lawyer providers of legal
services who have been admitted to a bar association.
(3) Subsections (1) and (2) shall apply accordingly insofar as the persons
designated in section 53a would have the right to refuse to testify.
(4) Subsections (1) to (3) shall not apply if certain facts give rise to the suspicion that
the person who is entitled to refuse to testify participated in the offence or in
handling stolen data, aiding after the fact, obstruction of prosecution or punishment,
or handling stolen goods. If the offence may be prosecuted only upon request or
only upon authorisation, sentence 1 shall apply in the cases under section 53 (1)
sentence 1 no. 5 as soon as and insofar as the request to prosecute has been filed
or the authorisation granted.
(5) Section 97, section 100d (5) and section 100g (4) shall remain unaffected.
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