BVerfG decision: Mere presumptions do not justify a search

In its decision of April 19, 2023, 2 BvR 2180/20, the Federal Constitutional Court declared unconstitutional the search of the private residence of the suspected clan member Sammy Miri in Dortmund, which the Hagen Local Court had ordered in August 2020.

The decision of the Federal Constitutional Court is based on the fact that the search unjustifiably interferes with the fundamental right of the accused to the inviolability of the home, which is enshrined in Article 13 of the Basic Law.

The background to the house search was a preliminary investigation on suspicion of money laundering and other offenses.

These proceedings are said to be connected with further investigations against a defendant named K. on suspicion of commercial fraud, who is said to have connections to Miri, among other things. Those connections were said to primarily involve two companies operated by K. (A.-UG and B.-UG).

On 12.08.2020, the police searched Miri himself as well as his apartment, other rooms of the property including the associated belongings and containers, side rooms, motor vehicles and garages.

The aim of the search was, among other things, to find evidence “of expenditures in connection with the A. UG as well as the B. UG, as well as the origin of these funds, any collusion between the parties involved, as well as documents, cell phones, data carriers, computers and other storage media.”

After Miri had unsuccessfully filed an appeal against the search warrant, he, represented by his attorney, filed a constitutional complaint on December 11, 2020, alleging a violation of Article 13 of the German Constitution.

Article 13 (1) of the Basic Law guarantees the inviolability of the home. A search – in most cases – seriously encroaches on this personal sphere of life protected by fundamental rights.

In its decision, the Federal Constitutional Court first defined the requirements for a justified encroachment on the inviolability of the home, i.e. a lawful search:

“Necessary, but also in view of the intensity of the encroachment of a search of the home sufficient reason for a search is the suspicion that a crime has been committed. The weight of the encroachment requires grounds for suspicion based on concrete facts that go beyond vague clues and mere conjecture […]. Thus, a search may not serve to ascertain facts that are first necessary to establish an initial suspicion […].”

In addition, “the order must describe the accusation and the evidence sought in such a way that the outer framework is marked out within which the coercive measure is carried out. […] In this way, the person concerned is at the same time put in a position to control the search and to counter any excesses from the outset […]. The essential features of the legal facts that characterize the criminal liability of the conduct to be subsumed must be named […].”

From the perspective of the Federal Constitutional Court, there was a lack of both those concrete facts and the limitation of the search order:

“Insofar as the specialized courts based the search order on the suspicion of money laundering pursuant to § 261 I StGB a.F., the underlying factual indications do not extend beyond vague connections and mere conjecture.”

The order of the district court had hardly contained any meaningful explanations about the origin of the concealed assets and the catalog offenses of § 261 I StGB – neither the suspicion of tax evasion nor an alleged “violent crime” or an alleged trafficking in narcotics had been specified in more detail and thus could not have established initial suspicion.

Furthermore, the measurability and controllability of the enforcement had not been guaranteed due to the lack of concretization of the alleged predicate offenses and the evidence sought.

The decision of the BVerfG shows: Searches are not intended to investigate people’s homes in an unrestrained manner in the hope of constructing an initial suspicion – this also applies to suspected clan members.

Checking the legality of the order and execution of a search by means of a complaint can often be an effective means of defending oneself against such a coercive state measure.