Physical Examination

The physical examination pursuant to § 123 StPO is an important investigative tool in criminal procedural law. Its purpose is to ascertain traces, concealed objects, or physical characteristics that are relevant for clarifying a criminal offense or assessing culpability. As it constitutes a significant intrusion into privacy, it is only permissible under strict legal conditions and generally requires judicial authorization.

Prerequisites for the Order

A physical examination is permissible if concrete facts exist that establish the suspicion that

• a person carries traces of the offense on their body,
• conceals objects within their body that are to be secured, or
• the examination is necessary to ascertain facts relevant for clarification or culpability

Examples include blood or DNA traces on the accused’s body, the suspicion of drug smuggling (“bodypacking”), or the medical determination of age and health status.

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Serial Examinations

In special cases, investigative authorities may also order a physical examination for a specific group of persons, for instance, in severe sexual or violent crimes. They act when they suspect the perpetrator to be within this group based on certain characteristics, and clarification would be significantly hampered without such examinations.

Formal Requirements

As a rule, the public prosecutor’s office orders the examination after the court has authorized it. Only in cases of imminent danger may the public prosecutor’s office order the examination itself. However, it must subsequently obtain judicial approval without delay.

If the court does not grant authorization, the authorities must immediately destroy the results.
An exception is the buccal swab, which the criminal police may carry out independently.

Limits and Consent

Surgical interventions and measures that could cause health damage lasting longer than three days are absolutely prohibited.
Other minor interventions, such as blood samples, may only be carried out after prior clarification and explicit consent of the person concerned.

Exceptions to the Consent Requirement

Authorities may carry out a blood sample or a comparably minor intervention even without the consent of the person concerned if

…the person concerned is suspected of having committed an intentional endangerment of people through communicable diseases or an offense against life and limb under the influence of alcohol or other intoxicants.

Likewise, authorities may carry out the measure without consent if it is necessary to clarify a criminal offense punishable by more than five years imprisonment or regulated in the tenth section of the Criminal Code.

Read more about prison sentences here.

Procedure

The physical examination is generally carried out by a physician.
A buccal swab may also be performed by specially trained personnel.
Furthermore, the regulations regarding searches apply, such as the right to involve a person of trust and the written confirmation of the measure within 24 hours.

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Use of Results

The results may only be used if

1. the legal prerequisites were met,
2. the measure was lawfully ordered, and
3. it serves to clarify the criminal offense for which it was ordered

Results from incidental findings may only be utilized if they are necessary for clarifying a corresponding criminal offense.

Legal Protection

Independent measures by the criminal police can be challenged with a complaint against measures.

For a judicial authorization, there is the possibility of an appeal to the Higher Regional Court.

If an order is issued by the public prosecutor’s office, an objection due to violation of rights is available.

Your Benefits with Legal Assistance

The physical examination in criminal proceedings constitutes a profound intrusion into physical integrity and privacy. Those affected are often uncertain whether the authorities lawfully ordered the measure and to what extent it is permissible. Errors in the order or execution can not only lead to impermissible infringements of fundamental rights but also to the inadmissibility of the evidence obtained. For those affected, this represents a significant legal and personal burden.

A specialized law firm examines the legality of each measure, protects the interests of those affected, and ensures that fundamental rights are upheld even during investigative proceedings. Competent legal assistance provides clarity and security.

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Frequently Asked Questions – FAQ