FEDERAL CONSTITUTIONAL COURT

- 2 BvR 2212/99 -

IN THE NAME OF THE PEOPLE

In the proceedings
on
the constitutional complaint

of Mrs. W...

the Third Chamber of the Second Panel of the Federal Constitutional Court

- Judges President Limbach,
Hasssemer,
Di Fabio

decided on May 5, 2000, pursuant to Art. 93c in conjunction with Art. 93a (2), letter b BVerfGG [Bundesverfassungsgerichtsgesetz - Federal Constitutional Court Act] as amended in the notification of August 11, 1993 (BGBl [Bundesgesetzblatt - Federal Law Gazette] I, p. 1473), unanimously as follows:

The order of the Paderborn Local Court of May 4, 1998 - 21 Gs 398/98 - infringes the complainant's fundamental right under Article 13(1) GG [Grundgesetz - Basic Law] in conjunction with the rule of law principle of the Basic Law. The decision of the Paderborn Regional Court of October 1, 1999 - 2 Qs 221/99 - infringes the complainant's fundamental right under Article 13(1) in conjunction with the rule of law principle of the Basic Law and her fundamental right under Article 19(4) in conjunction with Article 13 of the Basic Law; the decision is quashed. The matter is referred back to the Paderborn Regional Court.

The state of North Rhine-Westphalia shall reimburse the necessary expenses to the complainant.

Grounds:

I.

1. In its order of May 4, 1998, the Local Court ordered the search of the complainant's business, residential and other premises "in the investigation matter instituted against" her "on the grounds of tax evasion", as it could be assumed that the search would result in evidence, "especially documents, invoices, etc." being found. The order did not contain any further specifications. On the very same day, the complainant's premises were searched and business documents were seized.

2. In its decision of October 1, 1999, the Regional Court dismissed the complaint lodged against this order on the merits. The court held that pursuant to the decisions of the Federal Constitutional Court, the complainant's alleged offence would possibly have had to be specified in more concrete terms in the Local Court order. The seizure order had been premature as well, as the search had not taken place yet and it had therefore, at that point in time, obviously not been possible to designate the objects to be seized with sufficient precision. The Local Court order, however, could have been amended without any problems by listing the relevant elements of the offence. There were no grounds, however, for criticising the Local Court order on the merits, as the complainant had, due to fairly concrete hints, come under the suspicion of participating in the sale of duty-free goods to non-authorised customers. In any case, there had been sufficient intensity of suspicion pursuant to § 102 StPO [Strafprozessordnung - Code of Criminal Procedure]. In the light of the fact that the search had been terminated, that the seized objects had been returned to the complainant, and that the preliminary investigation had been stopped completely, the chamber did not regard itself as called upon to revise the wording of the search order of the Local Court. The original request of the complainant, i. e to establish retrospectively that there had not been any reason for ordering the search in the first place, could not be complied with.

II.

1. By her constitutional complaint, the complainant directs herself against the order of the Local Court and the decision of the District Court. She reprehends an infringement of her fundamental right under Art. 13 GG. The search order had not contained any factual information about the subject-matter of the alleged offence but only the term "tax evasion". The reasoning of the district court that the Local Court order could have been amended at any time was not to the point as the search had been carried out precisely due to the defective decision.

2. The Ministry of Justice of the State of North Rhine-Westphalia has refrained from giving an opinion.

III.

The constitutional complaint is admitted for decision, as this is indicated to enforce the complainant's fundamental rights (Art. 93a (2), letter b BVerfGG). The chamber can allow the constitutional complaint, as the constitutional issue determining the judgement of the complaint has already been decided upon by the Federal Constitutional Court and the constitutional complaint is admissible and clearly justified (Art. 93c (1), sentence 1 BVerfGG).

1. a) Art. 13(1) of the Basic Law in conjunction with the rule of law principle of the Basic Law obliges the judge who orders a search, in his function as the supervisory body of the prosecuting authorities, to ensure, within the scope of what is possible and reasonable, by an appropriate wording of the search order that the encroachment upon fundamental rights remains measurable and controllable. The protection of the privacy of the person affected cannot solely be left to the searching officers. Instead, it is the task of the judge to ensure from the outset that the coercive measure is delimited in a reasonable way (BVerfGE [Entscheidungen des Bundesverfassungsgerichts - Decisions of the Federal Constitutional Court] 42, 212 <220>). In any case, a search order which does not contain any factual information about the subject-matter of the alleged offence, and which, moreover, does neither indicate the type nor the possible content of the evidence which is the object of the search, does not meet these requirements if such indications are perfectly possible from the result of the investigations and if they are not detrimental to the purposes of prosecution. The designation of the alleged offence in key-word style only and the quote of the wording of § 102 StPO are not sufficient in such a case (BVerfGE 42, 212 <220-221>; cf. also the decision of the Second Chamber of the Second Panel of the Federal Constitutional Court of June 23, 1990 - 2 BvR 910/88 -, StV ["Der Strafverteidiger", professional journal] 1990, p. 483).

b) The search order issued by the Local Court does not meet these minimum constitutional requirements. It does not contain any factual information whatsoever on the subject-matter of the alleged offence although this would have been perfectly possible, but only indicates "on the grounds of tax evasion". Not even the type of taxes allegedly evaded or a specific legal element of offence are mentioned. The evidence quoted in an exemplary manner - "documents and invoices" - does not permit any conclusions concerning the subject-matter of the offence either. Any information about the period of time in which the offence was committed is lacking as well. Thus, the Local Court has left the delimitation of the encroachment upon the fundamental rights connected with the search entirely to the searching officers.

c) The Regional Court continues the infringement of the constitution committed by the Local Court. It fails to recognise the delimiting function of the judicial search order stipulated by the Basic Law when substantiating its dismissal of the complaint by holding that the search order could have been amended without any problems. The Basic Law has, as a general rule, reserved the order of the far-ranging encroachment upon the fundamental rights which a search constitutes to the judge to ensure from the outset a reasonable limitation of the extent of this coercive measure (BVerfGE 42, 212 <220>). This protection could not be ensured if it were sufficient for a search order to have potentially complied with the constitutional requirements.

2. a) Art. 19(4) GG contains a fundamental right of effective judicial protection against acts of public authority which is as complete as possible (cf. BVerfGE 67, 43 <58>; 96, 27 <39>; established practice). The citizens have a right to effective judicial control in all existing instances (cf. BVerfGE 78, 88 <99>; 96, 27 <39>; established practice). In cases of far-ranging encroachments upon fundamental rights in which the direct strain caused by the act of public authority whose constitutional review is requested, is, in the typical course of procedure, restricted to a period of time in which the person affected is hardly able to obtain the judicial decision in the instance provided for by the rules of procedure, effective protection of the fundamental rights requires that the person affected is provided with the opportunity to obtain judicial review of the justification of this considerable encroachment upon his or her fundamental rights even if the encroachment is no longer continued (BVerfGE 96, 27 <40>). The search of residential premises on the basis of a judicial order constitutes such a considerable encroachment upon the fundamental right under Art. 13(1) GG which, by its nature, has often already been terminated before a possible judicial review (BVerfGE 96, 27 <40>).

b) By this standard, the Regional Court decision infringes the complainant's fundamental right under Art. 19(4) GG in conjunction with Art. 13 GG. The Regional Court denied the complainant judicial review of the justification of the search which is required by the Basic Law. One of the constitutional preconditions of a search is a judicial warrant which meets the constitutional requirements (Art. 13(2) GG). The Regional Court, however, did not examine if such an order existed. It held instead that it was not called upon to review the wording of the search order. Thus, it denied the complainant effective legal protection.

IV.

The decision on the reimbursement of the necessary expenses follows from Art. 34a (2) BVerfGG.

This decision is final.