CASE OF PRADE v. GERMANY
Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)
Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Síofra O’Leary
5. The applicant was born in 1955 and lives in Hamburg. 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 was 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 “sternschnuppe756@uboot.com” – 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. Investigations 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: eBay 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. 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. 9. On 8 December 2004 the applicant’s (shared) flat in Hamburg was searched. The 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. 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 22, below). The Munich District Court and the Munich I Regional Court dismissed the complaint. 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. 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. 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 coincidentally 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 so serious that the applicant’s interest in respect for his home outweighed the public interest in prosecution. The Court of Appeal referred to the Federal Constitutional Court’s case-law (see paragraph 26 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 12 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. 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. 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 26 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. 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 September 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. 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. 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 23 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. 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 demanding disciplinary measures.