Summary:

I.

The Federal Constitutional Court has ruled whether personal information obtained from precautionary surveillance of private homes was permitted to be used in a judgment, and whether the presumption of punishability as fraud through the conclusion of life insurance policies is compatible with the principle of specificity of Article 103.2 of the Basic Law.

The three complainants were each sentenced in 2007 at first instance to several years’ imprisonment for membership in or support for a foreign terrorist organisation, in conjunction with attempted gang-based fraud in 28 combined cases. According to the findings of the criminal court, the complainants were planning to conclude life insurance policies. Through feigning that one of the complainants had had a fatal accident by presenting incorrect official documents which were yet to be obtained in Egypt, they then intended to have the respective insurance company disburse the insured sum. In this manner, they planned to obtain funds for the Al-Qaeda organisation. The complainants applied for the conclusion of a life insurance policy in 28 cases. Nine insurance policies were ultimately concluded. The complainants were apprehended before they were able to further enact their planned offence. The conviction was based amongst other things on information collected from precautionary surveillance of private homes. The monitoring had been carried out for a period of several months in 2004, prior to the initiation of the criminal investigation proceedings against the complainants because of suspicion of planning terrorist attacks. The judicial order of these surveillance activities was issued on the basis of § 29 of the Rhineland-Palatinate Police and Regulatory Authorities Act (Rheinland-Pfälzisches Polizei- und Ordnungsbehördengesetz; hereinafter, the “Act”). According to the Act, surveillance of private homes as a precautionary police measure, may be carried out to prevent an immanent threat to public security, in particular to avert serious criminal offences. The version of § 29 of the Act which was valid in 2004 did not contain any provisions governing protection of the core area of private life.

The Federal Constitutional Court found in its Judgment of 3 March 2004 in another set of proceedings that provisions contained in the Code of Criminal Procedure (Strafprozessordnung) regarding audio surveillance of private homes were incompatible with the Basic Law because they did not contain any precautions to protect the core area of private life. At the same time, the Court ordered that the provisions in question should continue to apply for a limited period of time until June 2005, taking into account the protection of human dignity and the principle of proportionality.

The requirements issued by the Federal Constitutional Court on protection of the core area of private life were implemented in 2005 by virtue of the introduction of corresponding supplementary provisions in § 29 of the Act.

The Federal Court of Justice (Bundesgerichtshof) confirmed that the information obtained by preventive surveillance of private homes could be admitted. The Federal Court of Justice amended the guilty verdict such that the complainants were guilty of completed fraud in those cases in which the life insurance policies had been concluded and of attempted fraud in the other cases.

II.

The Federal Constitutional Court reversed the judgment of the Federal Court of Justice and remanded the case to it because the guilty verdict for completed or attempted fraud violates the principle of specificity under Article 103.2 of the Basic Law. The admission of information stemming from the surveillance of private homes, by contrast, does not violate the complainants’ fundamental rights or rights equivalent to fundamental rights.

The decision is based on the following key considerations:

I. The use of information from precautionary surveillance of private homes is constitutionally unobjectionable.

1. It does not violate the complainants’ right to a fair trial. The right to a fair trail does not postulate a general ban on the use of certain evidence. Constitutionally, such a ban constitutes an exception that requires a justification as it restricts the possibilities open to the criminal prosecution authorities to gather evidence, and hence impairs the possibility of reaching  a substantively correct and fair ruling. From a constitutional point of view, a ban on the admission of evidence is required if the impact of the violation of the law leads to the accused not having adequate possibilities to exert influence on the course and the outcome of the proceedings, the minimum requirements as to reliable investigation of the truth are no longer met, or the admission of the information would lead to a disproportionate encroachment on the general right of personality. Moreover, the admissibility of information obtained by violating legal provisions may not be affirmed where this would lead to incentivising the unlawful taking of evidence. A ban on the admission of evidence may hence be required in particular after serious, deliberate or objectively arbitrary breaches of law in which fundamental rights-related safeguards have been intentionally or systematically disregarded.

According to these standards, it is constitutionally unobjectionable that according to the established case-law of the Federal Court of Justice, a breach of the law in taking evidence does not necessarily entail the inadmissibility of the information obtained thereby, but in each individual case there is a need for weighing the points of view speaking for and against admission, weighting the state’s interest in investigation and whether the accused has objected to the admission of the evidence at trial on the one hand and the seriousness of the breach of the law on the other. The weighing carried out by the Federal Court of Justice in the original proceedings and the rejection of a ban on the admission of evidence based on this meet said constitutional requirements. It is decisive here that precautionary surveillance of private homes is not a measure prohibited in general by the Basic Law and that its actual implementation complied with the constitutional requirements for the protection of the core area of private life.

2. Insofar as personal information stemming from the surveillance of private homes was admitted, the complainants’ general right of personality was not violated either. § 261 of the Code of Criminal Procedure constitutes the legal foundation for the use of personal information in the judgment handed down by a criminal court. According to this provision, the court rules on the outcome of the taking of evidence on the basis of a freely reached conviction. This provision is constitutional. In particular, it adheres to the principle of proportionality when interpreted in conformity with the Constitution, acknowledging a ban on admission in exceptional cases. The use of personal information in judgments handed down by criminal courts serves purposes which have constitutional status. It executes the constitutional obligation incumbent on the state to guarantee functioning administration of criminal law. The admission of information is hence also proportionate, in principle, if – as in the initial proceedings – the information was originally collected for another purpose, and hence its further use in criminal proceedings was preceded by an alteration of the purpose. Such an alteration of purpose is, however, only permissible, if the former and the latter purpose are not incompatible with each other [Translator’s note: By Order of 20 April 2016 - 1 BvR 966, 1140/09 -, BVerfGE 141, 220 <327 and 328. para. 287> the First Senate has decreed that the criterion of incompatibility is substantiated by the standard of whether the information could hypothetically have been legally collected for the latter purpose].The established case-law of the Federal Court of Justice that, according to § 261 of the Code of Criminal Procedure, unlawfully obtained personal information may, in principle, be admitted is also constitutionally unobjectionable. The provision is sufficiently specific since the use of information is restricted to the investigation and finding of facts in the context of the offence of which a person is accused in the proceedings.

II. The presumption by the Federal Court of Justice that the complainants committed fraud by concluding life insurance policies and attempted fraud by applying for life insurance policies, is by contrast not compatible with the principle of specificity of Article 103.2 of the Basic Law. This is because the constitutionally required, economically comprehensible finding and explanation of damage is missing.

The legal starting point of the Federal Court of Justice that the very conclusion of a contract may entail pecuniary damage if the claim obtained by the contracting partner is worth less than the obligation entered into is constitutionally unobjectionable. It is also compatible, in principle, with the constitutional principle of specificity to already presume actual loss in case of the concrete risk of a future loss. In order to prevent overstretching of the offence of fraud, however, it is necessary for the amount of the pecuniary damage to be estimated and for this to be presented in the reasoning for the judgment in an economically comprehensible manner.

The judgment of the Federal Court of Justice does not adhere to these constitutional requirements because it has failed to substantiate the finding of concrete damage, but permits (abstract) risks to suffice for the finding of pecuniary damage which are entailed by the conclusion of any contract with a dishonest contracting partner. There is no adequate description and estimate of the pecuniary damage that was caused by the conclusion of the life insurance policies, or which would have been caused in the instances of attempt. What is more, there are no considerations regarding the degree to which it is possible to tenably estimate how high the probability was at the time of the (intended) conclusions of contracts that the complainants would successfully carry out their planned offence, that is that the insurance payments would indeed be subsequently disbursed to them.