Information Note on the Court’s case-law 200

October 2016

K.S. and M.S. v. Germany - 33696/11

Judgment 6.10.2016 [Section V]

Article 8

Article 8-1

Respect for home

Search warrant issued on strength of evidence allegedly obtained in breach of domestic and international law: no violation

Facts – The German tax authorities instigated proceedings against the applicants for suspected tax evasion after receiving infor mation about the applicants’ assets held in a Liechtenstein bank. The information (together with data relating to many other account holders domiciled in Germany for tax purposes) had been illegally copied by an employee of the bank and purchased by the Ge rman secret service before finding its way to the tax authorities.

On the basis of that information, a prosecutor obtained a judicial warrant for the search of the applicants’ home. The applicants’ challenge to the lawfulness of the search was ultimately d ismissed by the Federal Constitutional Court, which found it to be settled case-law that there was no absolute rule that evidence which had been acquired in violation of procedural rules could not be used in criminal proceedings. The Federal Constitutional Court did not find it necessary to decide whether the data had been obtained in breach of international and domestic law, as the lower court was prepared to assume that the evidence might in fact have been acquired unlawfully.

In the Convention proceedin gs, the applicants complained that the search of their residential premises had violated Article 8 of the Convention, as the search warrant had been based on illegally obtained evidence.

Law – Article 8: The search amounted to an interference with the appl icants’ right to respect for their home. It was “in accordance with the law” as it was based on Articles 102 and 105 of the Code of Criminal Procedure and it was the settled case-law of the Federal Constitutional Court that there was no absolute rule that evidence acquired in violation of procedural rules could not be used in criminal proceedings. In these circumstances the applicants had been able to foresee ‒ if necessary with the aid of legal advice ‒ that the domestic authorities would consider that the search warrant could be based on the Liechtenstein data despite the fact that they may have been acquired in breach of law. The search pursued the legitimate aim of preventing crime.

The Court went on to consider whether the interference was necessary in a democratic society. In that connection, it considered, firstly, whether adequate safeguards had been in place to protect against arbitrariness and, secondly, whether the measure was proportionate.

(a) Safeguards against abuse – The German legislation and practice afforded adequate and effective safeguards against abuse. In so finding, the Court noted that (i) such measures could normally only be ordered by a judge under the limited conditions set out in the Code of Criminal Pr ocedure (reasonable grounds for suspecting an offence and a presumption that the search would lead to the discovery of evidence); (ii) even though there was no absolute rule of the domestic law that evidence acquired in violation of procedural rules could not be used in criminal proceedings, the Federal Constitutional Court’s case-law prohibited its use in cases of a serious, deliberate or arbitrary breaches which systematically ignored constitutional safeguards; and (iii) the regional court had applied tha t case-law when reviewing the lawfulness of the search warrant.

(b) Proportionality – The domestic courts could not be said to have overstepped their margin of appreciation in basing the search warrant on the Liechtenstein data, inter alia , for the follow ing reasons: (i) the offence in respect of which the search warrant was issued (tax evasion) was serious; (ii) the Liechtenstein data were the only evidence available at the relevant time that suggested that the applicants might have evaded paying tax, so the search warrant appeared to have been the only means of establishing whether they were in fact liable for tax evasion; (iii) there was no indication that the German authorities had at the relevant time deliberately and systematically breached domestic a nd international law in order to obtain information relevant to the prosecution of tax crimes or were purposely acting in the light of any established domestic case-law confirming that unlawfully obtained tax data could be used to justify a search warrant; (iv) in issuing the search warrant, the German authorities did not rely on real evidence obtained as a direct result of a breach of one of the core rights of the Convention; (v) the search warrant was quite specific in content and scope, containing an exp licit and detailed reference to the tax-evasion offence being investigated, with an indication of the items sought as evidence; and (vi) the applicants had not alleged any adverse effect on their personal reputation as a consequence of the executed search of their private premises.

In sum, the interference with the applicants’ rights under Article 8 had been necessary in a democratic society.

Conclusion : no violation (unanimously).

(See also Buck v. Germany , 41604/98, 28 April 2005, Information Note 74 ; and Smirnov v. Russia , 71362/01, 7 June 2007, Information Note 98 ; and, more generally, the Factsheet on the Protection of personal data and the Handbook on European data protection law )

© Council of Europe/European Co urt of Human Rights This summary by the Registry does not bind the Court.

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