Federal Constitutional Court - Press office -
Press release no. 88/2011 of 29 December 2011
Order of 7 December 2011 – 2 BvR 2500/09, 2 BvR 1857/10 –
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
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.
This press release is also available in the original german version.
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