Use Restrictions and Certification of the Same Data after Transformation of Proceedings
To control the unlimited use of citizens'personal data by public power,the principle of purpose constraint advocates that the processing(use)of citizens'personal data by public power organs should not deviate from the initial purpose setting.There is also room for the application of the principle of purpose constraint in the fields of administrative law enforce-ment and criminal justice.Given the dual functional attributes of police agencies,the police collect data for different purposes in the administrative law enforcement and criminal justice fields,namely for defense against harm in the former field and for prosecution of crimes in the latter field.Therefore,the limitations of the principle of purpose constraint should be taken into account in the processing(use)of personal data in the conversion of administrative proceedings into criminal proceedings and of criminal proceedings into administrative proceedings.In parti-cular,the use in criminal proceedings of personal data collected in"non-criminal proceedings"is subject to the original purpose for which the data are collected,while the use in administra-tive law enforcement proceedings of personal data originally collected in criminal proceedings is also subject to specific conditions.On the premise that the German Constitution explicitly guar-antees the right to personal data self-determination as a fundamental right,the German Code of Criminal Procedure also pays attention to the purposes for which personal data are collected and used,and emphasizes compliance with the procedures for the collection of personal data.Once the use of data crosses the procedural threshold and it can be proved that the purpose of the use of the data is different from the purpose for which the data was collected(from"defense against harm"into"prosecution of crime"or from"prosecution of crime"into"defense against crime"or"prevention of criminal prosecution"),the use of the data in subsequent proceedings re-quires further justification.In the case of Germany,the question of whether and how the same data can be used after the conversion of proceedings is justified by the idea of a"hypothetical alternative intervention".This paper explains the presentation of the"hypothetical alternative intervention"in German criminal proceedings in light of the"Legend Control"judgment of the German Federal Supreme Court in 2017,together with the newly amended § 479 Ⅱ of the Ger-man Code of Criminal Procedure,with a view to providing a basis for the development of the"hypothetical alternative intervention".This is intended to provide a theoretical justification for the use of personal data collected in non-criminal proceedings,evidence collected under techni-cal investigative measures,and"accidental discoveries"in subsequent proceedings;at the same time,the use of personal data needs to be restricted when criminal proceedings are conver-ted into administrative proceedings.
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