CONCURRING OPINION OF JUDGE VEHABOVI Ć

I voted with my colleagues in this case – albeit with some hesitation – on account of the particular features of the applicants ’ case as well as the general situation in Germany in respect of the rules and practice concerning the admissibility of evidence.

In my opinion the Chamber should have paid more attention to the principles of subsidiarity and the margin of appreciation in this particular case. There is some reflection of these principles, but they should have been the prevailing considerations in deciding on the outcome of this case.

In so far as the domestic courts in the present case examined the applicants ’ allegations that the decision to issue the search warrant had been based on unlawfully obtained evidence, which meant that the interference was not in accordance with domestic and international law – an issue addressed in paragraphs 34-35 of the judgment – the following principles should have been further developed and addressed in this judgment. In the case of Goranova-Karaeneva v. Bulgaria ( no. 12739/05, § 46 , 8 March 2011), the Court concluded as follows: “It is primarily for the national courts to interpret and apply domestic law ... While the Court should exercise a certain power of review in this matter, since failure to comply with domestic law entails a breach of Article 8, the scope of its task is subject to limits inherent in the subsidiary nature of the Convention, and it cannot question the way in which the domestic courts have interpreted and applied national law, except in cases of flagrant non-observance or arbitrariness” (see Kruslin v. France , 24 April 1990, § 29, Series A no. 176 A; Huvig v. France , 24 April 1990, § 28, Series A no. 176 B; and, mutatis mutandis , Galovic v. Croatia , no. 54388/09 (dec.), 5 March 2013, §§ 58 ‑ 61). In the present case (as in any other) the Court ’ s role is limited to determining whether the domestic courts ’ rulings (see paragraphs 10-23 of the judgment) were or were not arbitrary, as any arbitrariness will render the interference unlawful (see, mutatis mutandis , Slivenko and Others v. Latvia (dec.) [GC], no. 48321/99, §§ 105-06, ECHR 2002-II).

On a more general level this judgment should have reflected on whether the “foreseeability” requirement inherent in the notion of lawfulness was satisfied in the instant case: can an individual, even with the benefit of legal advice, foresee that his house may be searched and his belongings seized on the basis of a warrant which has been procured through reliance on financial information concerning him that is covered by banking secrecy and has been “stolen” by a third party?

In the case of G.S.B. v. Switzerland , no. 28601/11 , 22 December 2015, the Court concluded as follows [1] :

“89. The Convention institutions have established certain principles governing the disclosure of sensitive information, particularly information of a medical nature (see Z. v. Finland , 25 February 1997, Reports of Judgments and Decisions 1997 ‑ I, and M.S. v. Sweden , 27 August 1997, Reports 1997 ‑ IV), information concerning a politician ’ s financial situation (see Wypych v. Poland (dec.), no. 2428/05, 25 October 2005) and tax-related data (see Lundvall v. Sweden , no. 10473/83, Commission decision of 1 December 1985, Decisions and Reports (DR) 45, p. 121).

90. It follows from the principles established in these cases that the Court takes into account in this regard the fact that the protection of personal data is of fundamental importance to a person ’ s enjoyment of his or her right to respect for private life as guaranteed by Article 8. The domestic law must therefore afford appropriate safeguards to prevent any such communication or disclosure of personal data as may be inconsistent with the guarantees in Article 8. At the same time, the Court accepts that the interest in protecting the confidentiality of data may be outweighed by the interest in investigation and prosecution of crime and in the publicity of court proceedings, where such interests are shown to be of even greater importance. Lastly, the Court recognises that a margin of appreciation should be left to the competent national authorities in striking a fair balance between the public interests pursued, on the one hand, and the interests of a party or a third person in maintaining the confidentiality of such data, on the other hand (see, in particular, Z. v. Finland , cited above, §§ 94, 95 and 97-99).

91. These principles relating to the disclosure of certain information have been widely reaffirmed and developed by the Court in cases concerning the retention of personal data (see, in particular, S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, CEDH 2008, and Khelili v. Switzerland , no. 16188/07, §§ 61 et seq., 18 October 2011). It is against this background that the Court will examine the impugned interference with the applicant ’ s right to respect for his private life.”

The reasoning provided in the present judgment should have been narrower and focused on the principles established in G.S.B. v. Switzerland .

Generally speaking, in the majority of European legal systems but not in Germany, the principle of the fruit of the poisonous tree acts as an absolute obstacle to the use of such evidence in criminal proceedings against the applicant or the possibility for a court to base its final conclusions (conviction) on it. I have no doubt that the criminal proceedings started from the moment when the relevant authorities took the first steps in the criminal investigation against the applicant. In many European legal systems the admission in criminal proceedings against the applicant of evidence acquired in violation of criminal procedure laws or of human rights would lead to the removal of this evidence from the case file. In Germany, a very small number of legal provisions contain a ban on the use of evidence. Hence, any prohibition on the use of evidence has to be explicitly provided for by law or result from weighing the public interest in prosecuting the perpetrators of criminal acts against the legal interests of the defendant. We, as judges of the European Court, have to be aware of certain limitations even when our own legal background is different, but in these cases the emphasis should be on two core principles of the European Convention, namely subsidiarity and the margin of appreciation.

[1] The judgment cited here exists only in French.