With its decision of April 19, 2023, 2 BvR 2180/20, the Federal Constitutional Court declared the search of the private residence in Dortmund of alleged clan member Sammy Miri, which the Hagen District Court had ordered in August 2020, to be unconstitutional.
The Federal Constitutional Court’s decision is centrally based on the fact that the search unjustifiably infringed upon the suspect’s fundamental right to the inviolability of the home, as enshrined in Art. 13 of the Basic Law (GG).
The background of the house search was an investigation into suspected money laundering and other offenses.
This proceeding is said to be related to further investigations against a suspect named K. on suspicion of commercial fraud, who is alleged to have connections to Miri, among others. Those connections primarily concerned two companies operated by K. (A.-UG and B.-UG).
On August 12, 2020, the police searched Miri himself as well as his apartment, other rooms on the property including associated items and containers, outbuildings, motor vehicles, and garages.
The aim of the search was, among other things, to find evidence “of expenditures in connection with A. UG and B. UG as well as the origin of these funds, of any agreements between the parties involved, as well as documents, mobile phones, data carriers, computers, and other storage media.”
After Miri unsuccessfully filed an appeal against the search warrant, he filed a constitutional complaint on December 11, 2020, represented by his lawyer, alleging a violation of Art. 13 GG.
Art. 13 para. 1 GG guarantees the inviolability of the home. A search—in most cases—interferes severely with this constitutionally protected personal sphere of life.
In its decision, the Federal Constitutional Court first defined the requirements for a justified interference with the inviolability of the home, and thus for a lawful search:
“A necessary, but also in view of the intensity of the interference of a residential search, sufficient occasion for a search is the suspicion that a criminal offense has been committed. The weight of the interference requires grounds for suspicion based on concrete facts that go beyond vague indications and mere suppositions […]. A search may therefore not serve to investigate facts that are first required to establish an initial suspicion […].”
Furthermore, “the warrant must describe the allegation and the evidence sought in such a way that the external framework within which the coercive measure is carried out is defined. […] In this way, the person concerned is simultaneously enabled to monitor the search and to oppose any potential excesses from the outset […]. The essential characteristics of the legal elements that characterize the criminality of the behavior to be subsumed must be named […].”
From the perspective of the Federal Constitutional Court, there was a lack of both those concrete facts and a limitation of the search warrant:
“Insofar as the specialized courts based the search warrant on the suspicion of money laundering pursuant to Section 261 (1) StGB (old version), the underlying factual indications do not go beyond vague connections and mere suppositions.”
The District Court’s warrant contained hardly any meaningful explanations regarding the origin of the concealed assets and the catalog offenses of Section 261 (1) StGB—neither the suspicion of tax evasion nor alleged “violent crime” or an alleged trade in narcotics were specified in more detail and could therefore not justify an initial suspicion.
Furthermore, the measurability and controllability of the execution were not guaranteed due to the lack of specification of the alleged predicate offenses and the evidence sought.
The BVerfG’s decision shows: Searches are not intended to explore people’s homes in a boundless manner in the hope of being able to construct an initial suspicion—this also applies to alleged clan members.
Reviewing the lawfulness of the order and execution of a search by means of an appeal can often prove to be an effective means of defending oneself against such a state coercive measure.