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On the permissibility of admitting personal information in criminal proceedings that has been collected unlawfully, and on punishability as fraud through the conclusion of life insurance policies
Press Release No. 88/2011 of 29 December 2011
Order of 7 December 2011
2 BvR 2500/09
The Federal Constitutional Court has ruled in two sets of combined proceedings whether personal information obtained from preventive police monitoring of dwellings was permitted to be admitted in a judgment, and whether the presumption of punishability as fraud through the conclusion of life insurance policies is compatible with the principle of determinedness of Article 103.2 of the Basic Law (Grundgesetz - GG).
The Federal Constitutional Court found in its judgment of 3 March 2004 that provisions contained in the Code of Criminal Procedure (Strafprozessordnung - StPO) regarding acoustic monitoring of dwellings are incompatible with the Basic Law because they did not contain any precautions to protect the core area of private life, and at the same time 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 three complainants were each sentenced in 2007 at first instance to several years' imprisonment because of membership of 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 in order to obtain funds for the Al-Qaeda organisation, followed by feigning that one of the complainants had had a fatal accident by presenting incorrect official documents which were yet to be obtained in Egypt and having the respective insurance company disburse the insured sum. 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 preventive police monitoring of dwellings which 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 ordering 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 - POG RP), according to which monitoring of dwellings as a preventive police measure may be carried out to prevent an immanent risk to public security, in particular to avert serious criminal offences. The version of § 29 POG RP which was valid in 2004 did not contain any provisions for the protection of the core area of private life. The requirements issued by the Federal Constitutional Court on protection of the core area in the judgment of 3 March 2004 were implemented in 2005 by virtue of the introduction of corresponding supplementary provisions in § 29 POG RP.
The Federal Court of Justice (Bundesgerichtshof) confirmed that the information obtained by preventive police monitoring of dwellings could be admitted. It found that the fact that the basis for authorisation contained in § 29 POG RP 2004 had not fully satisfied the requirements of the Federal Constitutional Court on protection of the core area did not lead to a ban on its admission as evidence. 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.
The Second Senate of the Federal Constitutional Court quashed the judgment of the Federal Court of Justice and remitted the case to it because the guilty verdict for completed or attempted fraud violates the principle of determinedness from Article 103.2 GG. The admission of information from the monitoring of dwellings, by contrast, does not violate the complainants' fundamental rights or rights equivalent to fundamental rights.
In essence, the decision is based on the following considerations:
I. The admission of information from preventive police monitoring of dwellings is constitutionally unobjectionable.
1. It does not violate the complainants' right to a fair trial. Constitutionally, a ban on the admission of evidence constitutes an exception requiring grounds to be given because it restricts the possibilities open to the criminal prosecution authorities to gather evidence, and hence impairs the ascertainment of a substantively correct, fair ruling. From a constitutional point of view, a ban on theon the admission of evidence is required if the impact of the breach of the law leads to the accused not having adequate possibilities to exert an 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 favouring 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 the law in which fundamental law-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 a weighing up of the points of view speaking for and against admission, weighting the state's interest in investigation and the seriousness of the breach of the law. Also the weighing up accordingly 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 are not constitutionally objectionable. It is decisive here that preventive police monitoring of dwellings is not a measure that is inadmissible across the board according to the Basic Law and that its actual implementation complied with the constitutional requirements for the protection of the core area of private life.
2. In so far as personal information was admitted from monitoring of dwellings, the complainants' general right of personality was also not violated. The legal foundation for the admission of personal information in the judgment handed down by a criminal court is constituted by § 261 StPO, according to which 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 corresponds to the principle of proportionality when interpreted in conformity with the constitution, acknowledging a ban on admission in exceptional cases. The admission 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 proportional, in principle, if - as in the instant original proceedings - the information was originally collected for another purpose, and hence its further utilisation in criminal proceedings was preceded by an alteration of the purpose. The established case-law of the Federal Court of Justice that, according to § 261 StPO, unlawfully obtained personal information may, in principle, be admitted is also constitutionally unobjectionable. The provision is sufficiently determined in this regard since the admission 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 a criminal offence by concluding life insurance policies because of completed fraud and by applying for life insurance policies because of attempted fraud, is by contrast not compatible with the principle of determinedness of Article 103.2 GG because the constitutionally required, economically comprehensible finding and explanation of property damage is missing.
The legal starting point of the Federal Court of Justice, namely that the very conclusion of a contract may entail property damage if the claim obtained by the contracting partner is worth less than the obligation entered into ("fraudulent representation to obtain a contract"), is constitutionally unobjectionable. It is also certainly compatible, in principle, with the constitutional principle of determinedness to already presume current property damage in case of the concrete risk of a future loss. In order to prevent overstretching of the offence of fraud, however, apart from simple, unambiguous cases, it is necessary for the amount of the property damage to be estimated and for this to be presented in the reasoning for the judgment in an economically comprehensible manner. If uncertainties exist, it is possible to ascertain minimum damage by means of an estimate that is tenable in economic and also in legal termslegal terms.
The judgment of the Federal Court of Justice does not do justice to these constitutional requirements because it has not concentrated on the finding of concrete damage, but permits (abstract) risks to suffice for the finding of property damage which are entailed by the conclusion of any contract with a dishonest contracting partner. There is no adequate description and estimate of the property 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.