Communicated on 3 December 2014

FIFTH SECTION

Application no. 33696/11 K.S. and M.S. against Germany lodged on 27 May 2011

STATEMENT OF FACTS

The applicants, Mr K. S. and his wife Mrs M. S., are German nationals, who were born in 1939 and 1942 respectively and live in Lauf . They are represented before the Court by Mr F. Bielefeld, a lawyer practising in Munich.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

1. The search warrant and house search

On 10 April 2008 the Bochum District Court, following a request from the Bochum prosecutor ’ s office, issued a search warrant in respect of the home of the applicants, who were suspected of tax evasion committed in the years 2002 to 2006. The search warrant allowed the seizure of papers and other documents concerning the applicants ’ capital inside and outside Germany, especially documents concerning information on foundations and any document that could help to determine the true tax liability of the applicants since 2002.

The search warrant indicated that in the course of investigations against another suspect, Dr N. F. from Liechtenstein, the prosecution had obtained information that the applicants had established the “Kamuela Foundation” at the LGT Bank in Liechtenstein on 17 January 2000 and that they had further founded the “ Toska United S.A.” at the same bank on 14 June 2000. The applicants were suspected of making financial investments, via these two associations, at the LGT Bank in Liechtenstein for which they were liable for tax in Germany. According to the search warrant, the applicants had failed to declare about 50,000 euros (EUR) of yearly interest accrued from the capital of the Kamuela Foundation and the Toska United S.A. in their tax returns for the years 2002 to 2006. It indicated that the applicants had evaded tax payments of EUR 16,360 in 2002, EUR 24,270 in 2003, EUR 22,500 in 2004, EUR 18,512 in 2005 and EUR 18,000 in 2006. The search warrant stated that the house search was urgently needed in order to find further evidence and that, weighing the seriousness of the alleged crimes against the constitutional rights of the applicants, the house search was proportionate.

The search warrant did not mention the kind of evidence on which the suspicion that the applicants had committed tax evasion was based or where that evidence stemmed from. From the wide coverage of the events in the German press the applicants learnt, however, that the data from the LGT Bank to which the search warrant referred had in fact been copied illegally by a former employee of the LGT Bank, a certain K., who had offered the data carrier with the copied data to the German secret service ( Bundesnachrichtendienst ). The secret service had bought the data carrier for about four million euros. This information was also confirmed by the spokespersons of the federal government at a press conference on 19 February 2008. The Liechtenstein authorities lodged criminal proceedings against K.

On 23 September 2008 the applicants ’ flat was searched and LGT bank documents were seized.

2. Request for access to information made to the prosecution and the District Court

Following the house search, the applicants, who were represented by counsel, asked the prosecution and the District Court for full access to the investigation files. The prosecution granted access to the investigation files, which contained, inter alia , an extract of the data from the Liechtenstein data carrier as far as it concerned the applicants. The prosecution informed the applicants that they could not be given access to the data carrier itself because the carrier contained a large amount of tax data concerning other persons suspected of committing tax evasion whose right to tax-data confidentiality had to be protected. The prosecution informed the applicants, however, that the data in question had been handed over to the Wuppertal financial authorities by the secret service by way of mutual assistance ( Amtshilfe ) and that the information concerning the applicants had been extracted from that data. Accordingly, the applicants requested the District Court and the prosecution to grant them access to the list of all seized data and to the records of any hearings of the person who had handed over the data to the German authorities. The applicants were informed that the prosecution was not in possession of such documents.

3. Proceedings before the Bochum District Court

The applicants appealed against the search warrant and against the use of any material found during the house search as evidence in the criminal proceedings. They argued that the search warrant was not in accordance with the law, as it was based on material which had been acquired in breach of international law, especially the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 and the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime of 8 November 1990 because the data had been stolen from the LGT Bank and had been bought by the secret service. The acquisition of the data also violated domestic law as the secret service had no authorization to obtain tax data. In fact, such an act was a criminal offence under German law as it infringed section 17(1) and section 17(2 )( 2) of the Unfair Competition Act (“divulgence of official secrets” ( Geheimnisverrat )). Furthermore, the secret service had not been authorised to forward tax data to the financial authorities and the prosecution as this infringed the German legal principle of separation between the secret service and the police/prosecution ( Trennungsprinzip ). The secret service and the prosecution were only permitted to cooperate and exchange data in cases foreseen by the law. The case at hand was not one of those cases.

On 8 April 2009 the District Court dismissed the appeal. The Court was of the view that the house search was legal as it was based on a lawful search warrant. The court had no doubt that it had been lawful to base the search warrant on the information of the Liechtenstein data-carrier, as, in the court ’ s view , the data had neither been seized in direct violation of international law nor by circumventing international treaties.

The court was further of the view that the information of the data-carrier could be used for the issuing of the search warrant in question as the secret service had only played a passive role in the course of the acquirement of the data-carrier in question. According to the court there was no indication that the secret service had incited a third person to steal the data in question but had merely passively accepted the data from a third person when this person had offered the data to the secret service. The fact that the secret service might have remunerated the seller did, in the court ’ s view, not change the fact that the secret service had only played a passive role. In the court ’ s opinion it was within the secret service ’ s competencies to acquire the data carrier in the prescribed way and to hand the data over to the prosecution, as the data-carrier contained 9,600 sets of data concerning international cash flows.

4. Proceedings before the Bochum Regional Court

The applicants appealed against that decision before the Bochum Regional Court. On 7 August 2009 the court dismissed their appeal. In the Regional Court ’ s opinion it was in conformity with domestic law to base the initial suspicion that the applicants had evaded tax payments of about EUR 100,000 on data that had been illegally seized by a former employee of the LGT Bank and then bought from that employee by the German secret service and forwarded by the latter to the tax authorities and the prosecution.

The Regional Court further held that the search warrant was lawful, even if it was true that the German authorities had infringed domestic criminal law when purchasing the Liechtenstein data. By referring to the reasoning of one of its previous, more detailed, decision s (decision n o. 2Qs 10/08–W of the Bochum Regional Court of 22 April 2008) which concerned the same question as the present case, the court made it clear that even presuming that the German authorities might have committed the criminal offences of “acting as an accessory to a criminal offence” ( Begünstigung , Article 257 § 1 of the German Criminal Code) and “accessory to the divulgence of official secrets” ( Beihilfe zum Geheimnisverrat , section 17(1) and section 17(2)(2) of the Unfair Competition Act in conjunction with Article 27 of the German Criminal Code) when buying the Liechtenstein data from K. and that K. might have committed the offence of “industrial espionage” ( Betriebsspionage , section 17(2)(1) of the Unfair Competition Act), it considered the search warrant to be lawful.

By further referring to the above- mentioned decision of 22 April 2008, the Regional Court also incorporated the balancing of interests of this decision into its own decision. In the decision of 22 April 2008 the court had held that the interest in prosecuting the suspects outweighed the possible infringements of criminal law, as the principal criminal act of “data theft” had been committed by a third person and not by the German authorities. According to the well-established case-law of the Federal Court of Justice, evidence that had been illegally acquired by a third person could generally be used in criminal proceedings unless it had been acquired through coercion or force. It also had to be considered that the use of the “stolen” data did not infringe the core of the applicants ’ private sphere but their business affairs. Furthermore, the “data theft” did not primarily infringe the rights of the applicants but the data-protection rights of the bank from which it was “stolen”. The fact that the German authorities might knowingly and deliberately have infringed criminal law themselves when they acquired the data from the person who “stole” it did not prohibit the use of the data for the issuing of a search warrant as such prohibition would have rendered the whole criminal investigation impossible. Considering the seriousness of the alleged criminal offence, not using the information of the data-carrier for further measures of investigation would not have been proportionate. The evidence could therefore be used for the issuing of the search warrant.

The Regional Court further held that the search warrant was still lawful even if the international treaties which the applicant had invoked had been circumvented. The court doubted that such treaties had in fact been circumvented as Germany could not be held responsible for the “data theft” by K. as it had neither ordered nor commissioned the “data theft” but had merely bought the data when this had been offered by K. In any event, even assuming that the international treaties in question were infringed, the applicants could not draw any personal rights from such a violation as these international treaties did not provide for such individual rights. According to the case-law of the Federal Court of Justice, a defendant could only exceptionally invoke a breach of international law in his favor if the act of admitting evidence in a trial as such was the act that infringed international law. This had not been the case here, however. If there had been an act violating international law, this had been the illegal acquisition of the data by a third person and the purchase of the data by the German authorities. Those acts had already been terminated when the data were used for issuing the search warrant. That use did not infringe international law again.

5. Proceedings before the Federal Constitutional Court

On 11 September 2009 the applicants lodged a constitutional complaint with the Federal Constitutional Court. They claimed that the search warrant and the decisions of the Regional Court and the District Court infringed their right to a fair trial, the constitutional principle of the rule of law ( Rechtsstaatsprinzip ), the constitutional principle that the general rules of international law formed part of Federal German Law, and Article 2 in conjunction with Article 20 § 3 and Article 25 of the German Basic Law. The applicants were of the view that the Regional Court and the District Court should have decided that the search warrant was not in accordance with the law, as the use of the Liechtenstein data as a basis for a search warrant violated international treaties and the sovereignty of Liechtenstein, which had protested against the use of the data.

They further claimed that their right to be heard under Art icle 103 § 1 of the Basic Law had been infringed as they had been denied information on the question how exactly the Liechtenstein data had been acquired by the secret service and which role exactly the secret service had played in the whole context of the data purchase. They had been denied access to that information when they had requested access to all investigation files. Had they had more information about the role of the secret service, they could have argued their case more precisely and it was just possible that the criminal courts might have decided differently.

Furthermore, they argued that their right to respect for their home under Article 13 of the Basic Law had been infringed as the search warrant was based on evidence that had been acquired by the secret service and had been passed on to the prosecution in violation of German domestic law. The data purchase from K. constituted a criminal act as it infringed section 17 of the Unfair Competition Act and Article 257 § 1 of the German Criminal Code. Moreover, the secret service had no authority under German law to purchase such data. Furthermore, the transmission of the Liechtenstein data from the secret service to the financial authorities and the prosecution violated the principle of the separation between the secret service and the prosecution in Germany. The infringement of German domestic law was so severe that the criminal courts should have come to the conclusion that a search warrant could not be based on the Liechtenstein data. They would thus have been obliged to declare the search warrant illegal.

On 9 November 2010 the Federal Constitutional Court dismissed the constitutional complaint as manifestly ill-founded for the following reasons .

(a) Alleged breach of the constitutional right to be heard

The Federal Constitutional Court was of the view that, in essence, the applicants did not complain of a violation of their right to be heard because they had not claimed that the criminal courts had considered facts of which they had had no knowledge and in respect of which they had not been heard. A complaint about an infringement of the right to be heard would obviously have been manifestly ill-founded as the applicant had had full access to the investigation files of the prosecution and all documents that were before the criminal courts and had had the possibility to comment on them.

(b) Complaint about the denial of effective legal protection

According to the Federal Constitutional Court, the applicants had in essence rather complained that the criminal courts had not clarified the question how the prosecution had obtained possession of the Liechtenstein data and which role the secret service had played. Such complaint had to be interpreted as a complaint about the denial of effective legal protection (Article 19 § 4 of the Basic Law).

A lthough the applicants had exhausted domestic remedies, they had not satisfied the rule of subsidiarity of constitutional complaints ( Subsidiaritätsprinzip ) which required that besides using any effective legal remedy before the general courts an applicant had to make use of any possible procedural measure that would allow the general courts to avoid an infringement of constitutional rights. The applicants had neither explicitly nor implicitly asked the criminal courts to investigate these questions. They had only asked the prosecutor ’ s office for access to the list of data obtained and for the records of hearings of the person who had obtained and sold the Liechtenstein data. When they had been informed by the prosecution that the prosecutor ’ s office did not dispose of these documents, they had been satisfied with access to the files that were at the disposal of the prosecution and had not requested the prosecution to investigate any further the question how the Liechtenstein data had come into the prosecution ’ s possession and which role exactly the secret service had played. In their constitutional complaint the applicants explicitly complained for the first time that the criminal courts had not investigated this question. Consequently, this complaint could not be heard before the Federal Constitutional Court.

(c) Complaint about a breach of the right to respect for one ’ s home

The Federal Constitutional Court considered the applicants ’ complaint that the search warrant was not in conformity with the law because it infringed the sovereignty of Liechtenstein and international treaties together with the applicants ’ claim that the search warrant infringed domestic law criminal provisions and the principle of the separation between the secret service and the prosecution under the constitutional right to respect for one ’ s home (Article 13 of the Basic Law). The Federal Constitutional Court ruled that the fact that the search warrant was based on the Liechtenstein data did not infringe Article 13 of the Basic Law. T he applicants had inadequately challenged before the criminal courts and before the Federal Constitutional Court the way in which the criminal courts had described the acquisition of the Liechtenstein data in their judgments. The Federal Constitutional Court therefore decided that it had to base its decision on the factual basis established by the criminal courts, although the applicants had described some of the facts differently in their constitutional complaint.

The Federal Constitutional Court further ruled that German criminal procedural law did not contain an absolute rule that evidence which had been acquired in violation of procedural rules could never be used in criminal proceedings ( Beweisverwertungsverbot ). Generally, the courts had to consider all available evidence in order to ascertain objectively whether a defendant was guilty or not. A State could not function if it did not guarantee that perpetrators were prosecuted and convicted. A prohibition on using evidence at hand therefore had to remain an exception. Such prohibition was imperative, however, in a case of severe, deliberate or arbitrary breach of procedural rules which systematically disregarded constitutional safeguards. It was also imperative where evidence had been obtained in violation of constitutional rights affecting the core of private life. Whether there was a prohibition on using evidence could not be decided generally but had to be established on a case-by-case basis.

The court further ruled that it had to be borne in mind that the case at hand did not concern the question whether evidence could be admitted in a criminal trial but only concerned the preliminary question whether evidence that might have been acquired in breach of procedural rules could serve for the issuing of a search warrant which authorized the search for further evidence. Even if evidence was considered to be inadmissible in criminal proceedings, this did not automatically mean that the same was true for all steps of criminal investigations.

The court held that is was primarily up to the criminal courts to decide whether evidence could be considered by a court or not. The Federal Constitutional Court had to respect their decisions as long as the criminal courts stayed within the limits of recognized methods of interpreting the law. The mere fact that a decision might have been wrong did not constitute a violation of constitutional law, unless the decision was unreasonable. Having regard to this reduced competence of the Federal Constitutional Court, the court found that the decisions of the criminal courts did not infringe Article 13 of the Basic Law.

The Federal Constitutional Court made it clear that it was not necessary to come to a final decision with regard to the question whether the acquisition of the data had been unlawful, as the Regional Court had based its decision on the assumption that the evidence might in fact have been acquired in breach of international and/or domestic law, including criminal law. The decision of the Regional Court that the applicants could not invoke international law in their favour , as the use of evidence which might have been acquired in violation of international law did not as such constitute a breach of international law, was at least not arbitrary and could hence not be found to be in violation of Article 13 of the Basic Law.

The Federal Constitutional Court considered that the District Court ’ s assumption (which had not been challenged by the Regional Court) that the principle of separation between the secret service and the prosecution had not been infringed was right, as the secret service had neither ordered nor coordinated the “data theft” but had been offered the data on K. ’ s own initiative. Acquiring data in such a way and passing it on to the prosecution could not violate the principle of separation and hence could not render a search warrant unconstitutional.

6. Criminal proceedings before the Nuremberg District Court

On 2 August 2012 the applicants ’ trial took place before the Nuremberg District Court. They were charged with tax evasion. The prosecution accused them of having evaded tax payments for the interest accrued from the capital of the Kamuela Foundation. In total they were accused of having evaded EUR 76,099 in tax payments. The District Court acquitted the applicants, arguing that although it was very likely that the applicants had evaded taxes, the offence could not ultimately be made out because it could not be proven beyond reasonable doubt that the capital of the Kamuela Foundation had been invested in an interest-bearing way. The prosecution appealed against the decision but withdrew the appeal on 1 October 2012. The acquittal consequently became final.

B. Relevant domestic law and practice

1. Provisions of the Basic Law

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 authorised 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. ... ”

Article 2 § 1 read in conjunction with Article 20 § 3 of the German Constitution 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. ... ”

Article 25 of the German Constitution regulates the primacy of international law in the Germ an legal system. It reads:

Article 25

“The general rules of international law shall be an integral part of federal law. They shall take precedence over the laws and directly create rights and duties for the inhabitants of the federal territory.”

Article 103 of the German Constitution guaranties the right to a fair trial. In its relevant part it reads as follows:

Article 103

“(1) In the courts every person shall be entitled to a hearing in accordance with law. ... ”

Article 19 § 4 of the German Constitution guarantees the right to effective legal protection. It reads:

Article 19

“ ...

(4) Should any person ’ s rights be violated by public authority, he may have recourse to the courts. If no other jurisdiction has been established, recourse shall be to the ordinary courts. The second sentence of paragraph (2) of Article 10 shall not be affected by this paragraph.”

2. Provisions of the Criminal Code

The rules and safeguards for the search of a person ’ s home and the seizure of objects found during the search are regulated by Articles 102 to 108 of the Criminal Code, the relevant parts of which read as follows:

Article 102

“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 obstruction of justice or of 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

“(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. ... ”

3. Rules and practice on the admissibility of evidence

The German Code of Criminal Procedure does not contain general rules about the admissibility of evidence apart from 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.

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 BvR 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 ( Beweisverwertungsverbot ). Generally, the courts have to consider all available evidence in order to ascertain objectively whether a defendant was 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 44 6/98 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.

COMPLAINTS

The applicants complain that the search of their home infringed their rights to respect for their home and their private life under Article 8 § 1 of the Convention as the search warrant was based on evidence which had been obtained in breach of international and domestic law.

The applicants further complain, under Article 6 § 1 of the Convention, that their right to a fair trial, especially their right to equality of arms and their right to be heard, were infringed because they had not been able to obtain access to information that could have shed light on the exact role played by the secret service in the course of acquisition of the Liechtenstein data and transmission of the data to the financial authorities and the prosecution. They claim that the domestic courts based their decision on that information whereas the applicants were denied access to it and at the same time were not allowed to base their arguments on external information from the press. Had they had access to the information, they might have been able to prove that the secret service had not only been offered the disc containing the data but had in fact played an active role, initiating the data theft. They claim that it was possible that the courts would have decided differently if they had been able to describe the role of the secret service in detail.

QUESTION TO THE PARTIES

Has there been a violation of the applicants ’ right to respect for their private life and their home, contrary to Article 8 of the Convention?