BVerfG Entscheidung Durchsuchung

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.

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