FIFTH SECTION

CASE OF PRADE v. GERMANY

( Application no. 7215/10 )

JUDGMENT

STRASBOURG

3 March 2016

FINAL

03/06/2016

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Prade v. Germany ,

The European Court of Human Rights ( Fifth Section ), sitting as a Chamber composed of:

Ganna Yudkivska, President, Angelika Nußberger, Khanlar Hajiyev, Erik Møse, Faris Vehabović, Síofra O ’ Leary, Carlo Ranzoni, judges, and Claudia Westerdiek , Section Registrar ,

Having deliberated in private on 9 February 2016 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 7215/10) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a German national, Mr Hans-Otto Prade (“the applicant”), on 2 February 2010 .

2 . The applicant was represented by Mr R. Ritter, a lawyer practising in Hamburg. The German Government (“the Government”) were represented by their Agent, Mr H.J. Behrens, of the Federal Ministry of Justice and Consumer Protection .

3 . The applicant alleged , in particular, that the admission of evidence which was found coincidentally during an unlawful house search infringe d Article 6 § 1 of the Convention.

4 . On 18 November 2014 the application was communicated to the Government .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicant was born in 1955 and lives in Hamburg .

A . The background of the case

6 . The applicant is a civil servant working as a lawyer for the Hamburg tax authorities. In 1995 , the applicant was a board member of the local branch of a registered association called “Red Aid”. In this capacity he opened a bank account for the association. He and two other members of the association were authorised to draw on the account. The account was used for the deposit of donations and membership fees. The account data w as therefore published, for example in brochures. In 2000 the applicant left the board of the association.

7 . In 2003 , a third person reported to the police that he had bought a watch via eBay. The watch had turned out to be a fake. He had tried to rescind the purchase when he found out, but the seller – of whom he knew only the email address “ [email protected] ” – refused to cooperate. The police investigations showed that a certain Mr D. was registered with eBay as user of the email address “sternschnuppe756”. The bank account registered for the email address “sternschnuppe756” was the account of the “Red Aid” association. I nvestigations further showed that various other users, who were registered with eBay, cited the bank account of the “Red Aid” association as their bank account. The police also found out that the user of “sternschnuppe756” had traded computer programmes via eBay. An investigation of the transactions of the “Red Aid” bank account showed that there had only been one transaction connected to eBay: e Bay had tried to collect fees (EUR 36.33) on 7 October 2003. The “Red Aid” association had protested against the payment, which had been returned on 27 November 2003. Mr D. was questioned by the police. He explained , convincingly, that he had nothing to do with the email address “sternschnuppe756” or the bank account of the “Red Aid” association.

B . The search warrant in respect of the applicant ’ s flat

8 . On 21 September 2004, upon a request of the prosecutor ’ s office of Munich I, the Munich District Court issued a search warrant in respect of the applicant ’ s home (and the home of three other members of the “Red Aid” association who were authorised to draw on the association ’ s bank account) on suspicion that they had committed “copyright piracy” by selling fake goods such as watches and computer programmes. The search warrant authorised the search and seizure of computers and documents containing information about the sale of the fake watch and the computer programmes.

C . The search of the applicant ’ s flat

9 . On 8 December 2004 the applicant ’ s (shared) flat in Hamburg was searched. T he police found none of the items they were searching for. Instead, by coincidence, the police found 463 . 732 grams of hashish, which contained 39.09 grams of pure THC (tetrahydrocannabinol) , and two defective weighing scales in the flat. The amount and quality of the hashish was asserted by an expert. The amount was enough for 2606 consumption units. The criminal proceedings regarding the suspected “copyright piracy” were discontinued. However, new proceedings for possession and trafficking of a substantial amount of drugs were initiated against the applicant.

D . Proceedings challenging the search warrant and the search of the applicant ’ s flat

1 . Proceedings before the Munich District Court and the Munich I Regional Court challenging the lawfulness of the search warrant and the house search

10 . The applicant, represented by counsel, lodged a complaint against the search warrant before the criminal courts arguing that the warrant, and consequently the search, had been unlawful and had infringed his constitutional right to respect for his home under Article 13 of the German Constitution (“the Basic Law”; see paragraph 2 2 , below). The Munich District Court and the Munich I Regional Court dismissed the complaint.

2 . First proceedings before the Federal Constitutional Court challenging the lawfulness of the search warrant and the house search

11 . The applicant subsequently lodged a constitutional complaint with the Federal Constitutional Court.

12 . On 13 November 2005 the Federal Constitutional Court held that the complaint was manifestly well-founded, found a violation of Article 13 of the Basic Law, declared the house search unlawful and quashed the search warrant and the decisions of the District and the Regional Court. The court left open whether the few indications supporting the initial suspicion that the applicant might have committed “copyright piracy” justified the ordering of a search warrant. In any event, however, the Federal Constitutional Court ruled that having weighed the few indications supporting a suspicion that the applicant could have committed “copyright piracy” against the massive impact of a house search on the applicant ’ s constitutional right to respect for his home, the issuing of a search warrant and hence the house search had not been proportionate. It would have been possible and necessary to take other investigative measures that would have interfered less with the applicant ’ s right before searching the applicant ’ s home.

E . The proceedings in issue

1. First stage of the criminal proceedings before the Hamburg District Court

13 . On 29 July 2005 the applicant was indicted by the Hamburg prosecution on charges of possession of and trafficking in a substantial amount of drugs. On 24 January 2006 the Hamburg District Court convicted the applicant of possession of a substantial amount of drugs in less serious circumstances and imposed a ten months ’ suspended prison sentence. The judgment was exclusively based on the presence of hashish found during the house search of 8 December 2004.

2. First stage of the criminal proceedings before the Hamburg Court of Appeal

14 . The applicant lodged an appeal on points of law before the Hamburg Court of Appeal, arguing that he should have been acquitted as the evidence found during the house search could not be admitted as evidence in the criminal proceedings for drug possession. As the search warrant had been invalidated by the Federal Constitutional Court, the police had never had a right to enter the applicant ’ s shared flat and would therefore never have had a legal possibility of finding the drugs at the applicant ’ s flat. Moreover, the seizure of the hashish had not even been covered by the unlawful search warrant. The infringement of the applicant ’ s right to respect for his home had been so severe that the evidence which had coincident al ly been found during the house search could not be admitted as evidence against the applicant.

15 . On 5 September 2006 the Court of Appeal quashed the District Court ’ s judgment and referred the case back to the District Court because it was of the view that the District Court had not sufficiently examined whether the hashish belonged to the applicant. As he lived in a shared flat , the room , and hence the drugs , could have belonged to any of his flatmates. With regard to the admissibility of the evidence the Court of Appeal found that the hashish found during the search could be used as evidence against the applicant. The infringement of the applicant ’ s basic rights with regard to the criminal proceedings concerning copyright piracy had not been s o serious that the applicant ’ s interest in respect for his home outweighed the public interest in prosecution. The Court of Appeal referred to the Fede ral Constitutional Court ’ s case- law (see paragraph 2 6 below), according to which unlawfully obtained evidence could be used in criminal proceedings as long as , after a thorough balancing of the different interests at stake , the public interest in prosecution did not have to stand back against the right to respect for his home of the person concerned and as long as that person ’ s rights had not been violated on purpose. It reiterated the Federal Constitutional Court ’ s finding that the applicant ’ s basic rights had been seriously infringed (see paragraph 1 2 above) . Whether or not the search warrant had been sufficiently precise , and whether a sufficient initial suspicion for issuing a search warrant had been present or not , did not have to be determined because , even assuming that this had not been the case, such shortcomings did not render the obtained evidence unlawful. Because of the seriousness of the crime of drug possession , and the substantial amount of hashish found, the public interest in prosecution outweighed the applicant ’ s interest in respect for his home. Furthermore, the applicant ’ s rights had not been deliberately infringed, the house search had not been arbitrary and the amount of hashish found would theoretically have justified a house search. The Court of Appeal was hence of the view that the hashish found during the search could be used as evidence against the applicant.

3. First set of proceedings before the Federal Constitutional Court challenging the admissibility of evidence found during the house search

16 . Considering that it was legally unclear whether or not the Court of Appeal ’ s findings regarding the admissibility of the evidence found during the house search were binding on the lower courts, the applicant lodged a constitutional complaint with the Federal Constitutional Court. On 27 December 2006 the Federal Constitutional Court rejected the complaint as inadmissible.

4. Resumed criminal proceedings before the Hamburg District Court

17 . In the resumed proceedings before the Hamburg District Court, the applicant made a statement that the room in which the hashish had been found was exclusively used by him. On 18 April 2007 the District Court acquitted the applicant, ruling that the hashish found during the house search could not be used as evidence against him. The court noted that under the well-established case law of the Federal Constitutional Court (see paragraph 2 6 below) an unlawful house search did not automatically mean that the evidence seized during such a house search could not be used in the trial against the person concerned. Evidence might , however , be precluded if the violation of the applicant ’ s right to respect for his home had been particularly serious. The court weighed the public interest in prosecuting the crime of possession of drugs against the applicant ’ s interest in respect for his home. It was of the view that the initial suspicion that the applicant might have committed the offence of copyright piracy had been so vague that the issuing of a search warrant had not been justified at all. Hence, the applicant ’ s right to respect for his home had been infringed in such a severe way that despite the seriousness of the crime of drug possession and the substantial amount of hashish found, the public interest in prosecution could not outweigh the applicant ’ s interest in respect for his home.

5. The proceedings before the Hamburg Regional Court

18 . On 5 October 2007, on appeal by the prosecution, the Regional Court quashed the acquittal, convicted the applicant of possession of a substantial amount of drugs in less serious circumstances and sentenced him to a six months ’ suspended prison sentence. As regards the question whether the applicant had been in possession of the drugs the Regional Court relied on a statement of the applicant dated 13 March 2007 according to which the room in which the hashish had been found was solely used by himself. Furthermore, the Regional Court was of the view that the Court of Appeal ’ s findings in its judgment of 5 S eptember 2006 (see paragraph 15 above) on the admissibility of the hashish as the sole evidence were binding and that hence the hashish found in the applicant ’ s flat could be used as evidence against him. Moreover, the court made it clear that even if the Court of Appeal ’ s findings were not binding in this respect it was itself of the view that, weighing the applicant ’ s interest in respect for his home against the public interest in prosecution, the latter prevailed and that the evidence was thus admissible.

6. Second stage of the criminal proceedings before the Hamburg Court of Appeal

19 . The applicant subsequently lodged a fresh appeal on points of law before the Court of Appeal, arguing that the Regional Court should not have admitted the evidence. On 16 September 2008 the Court of Appeal dismissed the appeal. The court weighed the public interest in prosecuting the crime of possession of drugs against the applicant ’ s interest in respect for his home. It took the view that, considering the seriousness of the crime of drug possession and the substantial amount of hashish found, the public interest in prosecution outweighed the applicant ’ s interest in respect for his home because the applicant ’ s rights had not been deliberately infringed, the house search had not been arbitrary and the amount of hashish found would theoretically have justified a house search.

7. Second stage of the proceedings before the Federal Constitutional Court challenging the admissibility of the evidence obtained during the house search

20 . The applicant lodged a fresh constitutional complaint, arguing that the admission of the evidence infringed his right to respect for his home under Article 13 of the Basic Law and his right to a fair trial under Article 2 § 1 read in conjunction with Article 20 § 3 of the Basic Law (see paragraph 2 3 below). On 2 July 2009 the Federal Constitutional Court dismissed the complaint (file no. 2 BvR 2225/08). The decision was served on the applicant ’ s counsel on 3 August 2009. The court assessed the applicant ’ s arguments mainly under the head of Article 13 of the Basic Law. It held that the Court of Appeal had balanced all the interests at stake in a way that was neither arbitrary nor unreasonable and that the conviction of the applicant, although exclusively based on the evidence found during the house search, did not infringe the applicant ’ s constitutional rights. With regard to the applicant ’ s claim that the use of the hashish seized as evidence against him had violated his rights under Article 2 § 1 read in conjunction with Article 20 § 3 of the Basic Law, the court held that the principle of a fair trial had been applied in a way that was neither unjustifiable nor arbitrary. Hence the applicant ’ s constitutional rights had not been violated.

F . Disciplinary proceedings

21 . As the applicant was a civil servant, disciplinary proceedings were initiated in view of the criminal charges against him . The disciplinary proceedings were adjourned during the criminal proceedings. Following the conviction of the applicant by the criminal courts, the competent authorities formally noted that the applicant had committed a disciplinary offence and discontinued the proceedings as the offence had not been of a kind or degree d emanding disciplinary measures.

II. RELEVANT DOMESTIC LAW AND PRACTICE

22 . Article 13 of the German Constitution (“the Basic Law ” ) guarantees the inviolability of a person ’ s home. The relevant part reads:

Article 13 of the Basic Law

“(1) The home is inviolable.

(2) Searches may be authori s ed only by a judge or, when time is of the essence, by other authorities designated by the laws, and may be carried out only in the manner therein prescribed. ...”

23 . Article 2 § 1 read in conjunction with Article 20 § 3 of the Basic Law guarantees the right to a fair trial. The relevant parts read:

Article 2 of the Basic Law

“(1) Every person shall have the right to free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law . ...”

Article 20 of the Basic Law

“...

(3) The legislature shall be bound by the constitutional order, the executive and the judiciary by law and justice. ...”

24 . Articles 102 to 108 of the Code of Criminal Procedure lay down the conditions and procedure in and according to which a person ’ s home can be searched and objects seized. The relevant parts of these rules read as follows:

Article 102 [Search in respect of the Suspect]

“A body search, a search of the property or of the private or other premises of a person who, as a perpetrator or as an instigator or accessory before the fact, is suspected of committing a criminal offence, or is suspected of being an accessory after the fact or of obstructing justice or handling stolen goods, may be made for the purpose of his arrest, as well as in cases where it can be presumed that the search will lead to the discovery of evidence.”

Article 105 [Search Order; Execution]

“(1) Searches may be ordered only by a judge or, in exigent circumstances, also by the public prosecutor ’ s office and the officials assisting it ...”

Article 108 [Seizure of other Objects]

“(1) Where objects which indicate the commission of another criminal offence are found during a search, they shall be provisionally seized even though they are not connected with the ongoing investigation. The public prosecutor ’ s office shall be informed accordingly. ...”

25 . The German Code of Criminal Procedure does not contain general rules about the admissibility of evidence besides Article 136a, which provides that confessions obtained by torture, inhuman or degrading treatment or by unlawful coercion may not be used as evidence against the defendant.

26 . According to the well-established case-law of the Federal Constitutional Court (see, inter alia , file nos. 2 BvR 2017/94 and 2 BvR 2039/94 of 1 March 2000; no. 2 Bv R 1990/96 of 27 April 2000; no. 2 BvR 75/94 of 27 April 2000; no. 2 BvR 2257/00 of 8 November 2001; no. 2 BvR 1707/02 of 9 October 2003; no. 2 BvR 1502/04 of 30 June 2005; and no. 2 BvR 784/08 of 28 July 2008) and the Federal Court of Justice (see, inter alia , no. 5 StR 190/91 of 27 February 1992), however, there is no absolute rule that evidence which has been acquired in violation of the procedural rules cannot be used in criminal proceedings. Generally, the courts have to consider all available evidence in order to ascertain objectively whether a defendant i s guilty or not, as a State cannot function if it does not guarantee that perpetrators are prosecuted and convicted (see Federal Constitutional Court, no. 2 BvL 7/71 of 19 July 1972). The prohibition on the use of evidence therefore has to remain an exception (see Federal Court of Justice, no. 3 StR 181/98 of 11 November 1998). Such a prohibition is, however, imperative in the case of a serious, deliberate or arbitrary breach of procedural rules which has systematically ignored constitutional safeguards. Such a prohibition is also imperative where evidence has been obtained in violation of constitutional rights which affect the core of private life (see Federal Constitutional Court, no. 2 BvR 446/98 of 15 July 1998; no. 2 BvR 1027/02 of 12 April 2005; and no . 2 BvR 954/02 of 16 March 2006). Whether there is a prohibition on using evidence cannot be decided in a general way , but has to be determined on a case-by-case basis.

THE LAW

I. ALLEGED VIOLATION OF THE CONVENTION ON ACCOUNT OF THE USE OF UNLAWFULLY OBTAINED EVIDENCE AT THE TRIAL

27 . The applicant complained that the use at his trial of the evidence obtained in the execution of an invalid search warrant had been in breach of his rights under the Convention. He relied on the right to a fair trial (Article 6 § 1) and the right to respect for his private life (Article 8). The Court considers that the applicant ’ s complaint fall s to be examined under Article 6 § 1 of the Convention alone which, as far as relevant, reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

28 . The Government contested that argument.

A. Admissibility

29 . The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties ’ submissions

(a) T he applicant

30 . The applicant was of the opinion that the admission of the evidence conflicted with his right to a fair trial becaus e the violation of his right to respect for his home was of a severe nature. In this regard , he alleged that the search warrant was arbitrary and a lawful search of his flat had not been possible beca use the initial suspicion that he might have committed the offence of copyr ight piracy had been too vague. The applicant stressed that the hashish found during the unlawful flat search was the only evidence . H is statement regarding his exclusive use of the room in the flat where the hashish had been found could not be regarded as evidence as it was not related to the hashish found . Lastly , he maintained that the public interest in prosecution could not outweigh his right to respect for his home as the offence had been of minor consequence for the public , and the breach of his basic rights severe . His case could therefore be compared to the case of Jalloh v. Germany ( [ GC ] , no. 54810/00, §§ 94-96, ECHR 2006 ‑ IX) .

(b) The Government

31 . The Government maintained that the proceedings had been fair. The domestic courts , in their decisions , had addressed in detail the issue of the admissibility of evidence. In doing so, they had very carefully balanc ed the applicant ’ s basic rights with the public interest in law enforcement . The fact that there was no initial suspicion of a drug offence was counterbalanced by the amount of hashish found, which would have permitted the issuing of a search warrant . The domestic courts ’ balancing was therefore appropriate . T he facts of the case could not be compared to th o se at issue in the case of Jalloh (cited above) . Furthermore, the applicant availed himself at all stages of the proceedings of the opportunity to challenge the admission of the unlawfully obtained evidence. Lastly, the circumstances under which the hashish was found cast no doubt on its reliability or accuracy as evidence , nor were the drugs the only evidence. The second decisive element for the applicant ’ s criminal liability was his statement with regard to the use of the room where the hashish had been found .

2. The Court ’ s assessment

(a) General Principles

(b) Application to the present case

37 . T he Court notes at the outset that the house search , conducted in the context of other criminal law proceedings against the applicant, which led to the discovery of the drugs, was not in acco r dance with the domestic law . The Federal Constitutional Court quashed the search warrant because it had been based on too few indications supporting a suspicion that the applicant could have committed “copyright piracy” and therefore there was no sufficient ground to justify the m assive impact of a house search on the applicant ’ s basic rights. However, as prescribed by Article 13 of the Basic Law, the authorities obtained judicial authorisation prior to the search. Nothing indicates in the present case that the police act ed in bad faith or in intentional breach of formal rules when obtaining and executing the search warrant (compare Kaletsch v. Germany (dec.), no. 31890/06, 23 June 2009).

38 . T he Court notes that the applicant had the effective opportunity to challenge the use of the evidence obtained by execution of the unlawful search warrant . H e oppose d such use at all three levels of jurisdiction , arguing that the public interest in prosecution could not outweigh his right to respect for his home. At all instances his arguments were given a due consideration by the courts .

39 . The Court must examine next the quality of the evidence in question. As concerns the level of intrusiveness, the Court notes that the present case significantly differs from the case of Jalloh (cited above). In Jalloh the authorities subjected the applicant to a grave interference with his physical and mental integrity against his will and the evidence was therefore obtained by a measure which breached Article 3 of the Convention, one of the core rights guaranteed by the Convention (see Jalloh , cited above, § 82), w hereas in the present case the evidence was obtained by a measure which was in breach of domestic law, which did not breach Article 3. As regards the question whether the circumstances in which the evidence was obtained cast doubt on its reliability or accuracy, the Court notes that it is undisputed between the parties that the evidence was found in a room within the flat used exclusively by the applicant (see paragraph 18 above). Furthermore, the amount and quality of the hashish has been determined by an expert whose findings have not been challenged by the applicant at any stage of the proceedings. Thus nothing casts any doubts on the reliability or accuracy of the evidence (contrast Layijov v. Azerbaijan , no. 22062/07 , § 75, 10 April 2014; Horvatić v. Croatia , no. 36044/09 , § 84, 17 October 2013 and Lisica , cited above, § 57) .

41 . Lastly, when determining whether the proceedings as a whole have been fair, the weight of the public interest in the investigation and punishment of the particular offence in issue may be taken into consideration and be weighed against the individual ’ s interest that the evidence against him be gathered lawfully. The Court notes that the national courts addressed in detail the applicant ’ s arguments regarding the use of the evidence and thoroughly reasoned why they were of the opinion that the evidence, although obtained by an unlawful house search, could be used as evidence in the criminal proceedings at issue. They weighed the public interest in prosecuting the crime of drugs possession against the applicant ’ s interest in respect for his home. Unlike in the case of Jalloh (cited above, § 107), where the domestic authorities considered the admittance of evidence obtained by the forcible administration of enemetics authorized by domestic law, in the present case the national courts were aware of their discretion to exclude the unlawfully obtained evidence when they considered the evidence at hand. In these circumstances, and further given that the considerable amount of hashish which had been detected (in contrast to the case of Jalloh in which only a small amount of cocaine was found) was taken into consideration by the domestic courts, their conclusion that the public interest outweighed the applicant ’ s basic rights was carefully and thoroughly reasoned and did not disclose any appearance of arbitrariness or disproportionality.

42 . Having examined the safeguards which surrounded the evaluation of the admissibility and reliability of the evidence concerned, the nature and degree of the unlawfulness , and the use which was made of the material obtained through the impugned search, the Court finds that the proceedings in the applicant ’ s case, considered as a whole, were not contrary to the requirements of a fair trial.

II . OTHER ALLEGED VIOLATION OF THE CONVENTION

44 . The applicant also complained under Article 8 of the Convention that the search warrant and the house search infringe d his right to respect fo r his private life and his home.

45 . T he Court notes in this respect that the six-month time-limit, under A rticle 35 § 1 of the Convention , started running from the date of the “final decision”. With regard to the search warrant and the house search , that is the first decision of the Federal Constitutional Court , dated 13 November 2005. The Court concludes that the p resent application, lod ged on 2 February 2010, was lodged outside the six-month time-limit in this respect . It follows that this part of the application must be rejected as inadmissible , pursuant to Article 35 §§ 1 and 4 of the Convention.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaint under Article 6 § 1 of the Convention concerning the use at the trial of the evidence found during an unlawful house search admissible and the remainder of the application inadmissible;

2 . Holds that there has been no violation of Article 6 § 1 of the Convention .

Done in English, and notified in writing on 3 March 2016 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Claudia Westerdiek Ganna Yudkivska Registrar President