Communicated on 18 November 2014

FIFTH SECTION

Application no. 7215/10 Hans-Otto PRADE against Germany lodged on 2 February 2010

STATEMENT OF FACTS

The applicant, Mr Hans-Otto Prade , is a German national, who was born in 1955 and lives in Hamburg . He is represented before the Court by Dr R. Ritter , a lawyer practising in Hamburg .

A. The circumstances of the case

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

1. The background of the case

The applicant is a civil servant working as a lawyer for the tax authorities of Hamburg. 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 authori s ed to draw on the account. The account was used for the deposit of donations and membership fees. The data of the account were therefore published, for example in brochures. In 2000 the applicant left the board of the association.

In 2003 a third person reported to the police that he had bought a watch via eBay. Th e 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. The 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 program me s via eBay. An investigation of the transactions of the bank account of the “Red Aid” association showed that there had only been one transaction connected to eBay: EBay had tried to collect fees ( EUR 36 . 33) on 7 October 2003. The “Red Aid” association had protested against the payment , however , which had been returned on 27 November 2003. Mr D. was questioned by the police. He convincingly explained that he had nothing to do with the email address “sternschnuppe756” or the bank account of the “Red Aid” association.

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

On 21 September 200 4 , 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 authori s ed 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 program me s . The search warrant authori s ed the search and seiz ur e of computers and documents contain ing information about the sale of the fake watch and the computer program me s .

3. The search of the applicant ’ s flat

On 8 December 2004 the applicant ’ s (shared) flat in Hamburg was searched. None of the items the police were search ing for were found. 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 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.

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

(a ) Proceedings before the Munich District Court and the Munich I Regional Court challenging the lawfulness of the search warrant and the house search

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 Relevant domestic law and practice below ). The Munich District Court and the Munich I Regional Court dismissed the complaint.

(b ) First p roceedings before the Federal Constitutional Court challenging the lawfulness of the search warrant and the house search

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

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 in dications supporting the initial suspicion that the applicant might have committed “copyright piracy” justified the ordering of a search warrant. In any event, however, t he 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.

5 . The proceedings in issue

(a ) First criminal proceedings before the Hamburg District Court

On 29 July 2005 the applicant was indicted by the Hamburg prosecution o n charges o f 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.

(b) First criminal proceedings before the Hamburg Court of Appeal

The applicant lodged an appeal on points of law before the Hamburg Court of Appeal, arguing that he should have be en 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 find ing 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 coincidently been found during the house search could not be admitted as evidence against the applicant.

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 balanced the applicant ’ s right to respect for his home against the public interest in prosecution. 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. The Court of Appeal was hence of the view that the hashish found during the search could be used as evidence against the applicant.

(c) First p roceedings before the Federal Constitutional Court challenging the admissibility of evidence found during the house search

Considering that it was legally un clear 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.

(d) Resumed criminal proceedings before the Hamburg District Court

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 Relevant domestic law and practice below) an unlawful house search did not automatically mean that the evidence seized during such 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 t he 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 .

(e) Criminal p roceedings before the Hamburg Regional Court

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 . The Regional Court was of the view that the Court of Appeal ’ s findings in its judgment of 5 September 2006 (see above) on the admissibility of the impugned 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.

(f) Second criminal proceedings before the Hamburg Court of Appeal

The applicant subsequently lodged a fresh appeal on points of law before the Court of Appeal, arguing that the Regional Court should not have admit ted 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.

(g) Second proceedings before the Federal Constitutional Court challenging the admissibility of the evidence obtained during the house search

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 Relevant domestic law and practice 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.

6. Disciplinary p roceedings

As the applicant was a civil servant, disciplinary proceedings were also initiated against him. The 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 demanding disciplinary measures.

B. Relevant domestic la w and practice

Article 13 of the German Constitution (“the Basic L aw ) guarant e es 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 authorized 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 (“the Basic Law) guarantees the right to a fair trial. The relevant part s 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. ...”

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 r espect 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 obstructi ng 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 prosecut or ’ s office and the officials assisting it (section 152 of the Courts Act). ...”

Article 108 [Seizure of o ther 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 prosecut or ’ s office shall be informed accordingly . ... ”

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.

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 ha s 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 objective ly whether a defendant was guilty or not, as a S tate 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 pro hibition on the use of evidence therefore has to remain an exception (see Federal Court of J us tice, no. 3 StR 181/98 of 11 November 1998). Such a prohibition is, however , imperative in the case of a s erious , deliberate or arbitrary breach of procedural rules which has systematically ignored constitutional safegua rds. Such a prohibition is also imperative where evidence ha s been obtained in violation of cons titutional 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 us ing evidence can not be decided in a general way but ha s to be determin ed on a case-by- case basis .

COMPLAINTS

The applicant complains , under Article 8 § 1 of the Convention, that the search warrant, the house search and the use of the evidence found by chance during the house search in the criminal proceedings against him infringe d his rights to respect fo r his private life and his home.

The applicant further complains , under Article 6 § 1 of the Convention , that the criminal proceedings against him were unfair as a whole as his conviction was based on the evidence seized during the illegal house search.

QUESTION TO THE PARTIES

Did the applicant have a fair hearing in the determi nation of the criminal charges against him , in accordance with Article 6 § 1 of the Convention?

In particular, did the admission of the evidence obtained through the search on 8 December 2004 comply with the guarantees of this provision (see Bykov v. Russia [GC], no. 4378/02, 10 March 2009 , Lisica v. Croatia , no. 20100/06 , 25 February 2010 ) ?