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The emergency competence of investigative authorities for issuing search warrants ends when the competent judge becomes involved

Press Release No. 54/2015 of 15 July 2015

Order of 16 June 2015
2 BvR 2718/10, 2 BvR 2808/11, 2 BvR 1849/11

The emergency competence of investigative authorities for issuing search warrants ends with the competent investigating judge or on-call judge becoming involved who can provide preventive fundamental rights protection. Thus was the decision by the Second Senate of the Federal Constitutional Court in an order published today; at the same time, it has granted three constitutional complaints directed against the judicial confirmation of search warrants issued by the public prosecutor’s office. The investigative authorities cannot reassume their emergency competence merely on the grounds that the competent judge fails to decide [translator’s note: on the request] within a certain period of time. There can only be a new emergency competence if new facts that occur later or become known at a later point in time justify the assumption of imminent danger. The state is under an obligation to ensure effective implementation of the requirement of judicial authorisation [translator’s note: for search warrants], which is intended to safeguard fundamental rights. It does so in particular by providing the courts with adequate infrastructure and personnel.

Facts of the Case:

In the initial proceedings leading up to constitutional complaint 2 BvR 2718/10, on 10 May 2010 at about 4:30 pm a person informed the police that the complainant possessed a pistol and that the complainant’s mother had threatened the caller to have him killed. The investigative judge who was reached by phone at about 5:25 pm refused to decide on the requested search warrant without having seen the investigative file. As a consequence, the public prosecutor himself issued the search warrant at about 5:30 pm based on the severe threat to the person concerned.

In proceedings 2 BvR 1849/11, the police was informed at about 1:43 pm on 25 August 2009 that the complainant had written a document in an internet café that incriminated herself concerning a planned arson attack on vehicles belonging to postal service providers. The competent investigative judge could not be reached; at 4:42 pm his deputy said on the telephone that without knowing the investigative file he could not decide upon the requested search warrant. At 4:50 pm, the public prosecutor issued the search warrant himself, since, from his point of view, compiling and forwarding the requested file would have taken about two hours and a half, during which time the complainant might have returned to her flat.

In proceedings 2 BvR 2808/11, the public prosecutor initiated investigative proceedings against the complainant in February 2008 because he was suspected of having violated the prohibition on placing unauthorised medicinal products on the market. Following a newspaper article that might have made the complainant aware of the investigation, the public prosecutor on 21 July 2008 requested a search warrant. The competent investigative judge stated that he could not decide on the warrant without knowing the investigative file and that since he also had to leave to decide on continuation of custody in another case there was “imminent danger” („Gefahr im Verzug“) in the case at hand. Thereupon, the public prosecutor ordered the search himself.

Key Considerations of the Senate:

The constitutional complaints are mostly well-founded. The challenged orders violate the complainants’ fundamental right under Art. 13 secs. 1 and 2 of the Basic Law (Grundgesetz – GG).

1. Art. 13 sec. 1 GG guarantees the inviolability of the home. In view of human dignity and in the interest of developing one’s personality, the individual is guaranteed an elementary living space. At home, he or she has the right to be left in peace. A search constitutes a severe interference with this sphere of life protected by fundamental rights; therefore, the first half sentence of Art. 13 sec. 2 GG in principle requires a judge to order a search. Making searches subject to a judicial decision serves the purpose of allowing preventive review of the requested measure by an independent and neutral institution. Obtaining a judicial search warrant must not constitute a mere formality. On the contrary, the judge has to ensure that the conditions for a search as set by the Constitution and by ordinary law are strictly complied with.

At the same time, from Art. 13 GG follows the duty of state organs to ensure the effective implementation of the requirement of judicial authorisation, which safeguards fundamental rights. Consequently, the Federation and the Laender (federal states) have to ensure that courts are equipped with such infrastructure and personnel as to be able to effect effective preventive judicial review of home searches.

2. Pursuant to the second half sentence of Art. 13 sec. 2 GG, searches may be ordered by public prosecutors and by their investigative personnel in cases of imminent danger. However, the wording and structure of Art. 13 sec. 2 GG show that there is a relationship of rule and exception concerning judicial and non-judicial search warrants. If the investigative authorities issue search warrants themselves, there is no preventive review by an independent and neutral judge. The remaining ex post-review cannot undo interferences with fundamental rights that have already taken place and does not fulfil the requirement of providing preventive judicial protection of fundamental rights. Therefore, the term of “imminent danger” („Gefahr im Verzug“) is to be construed narrowly and may only be applied if it is not possible to obtain a judicial order without endangering the purpose of the requested measure – usually a seizure of evidence. If, however, the judge can be contacted about the search warrant and is able decide on issuing it without there being the risk of losing evidence, there can be no recourse to the emergency competence of the investigative authorities.

According to the concept of Art. 13 sec. 2 GG, the investigative authorities have to first assess this question themselves. In doing so, they need to bear in mind both the general competence of the judge and the specific circumstances of the individual case. In particular, they have to assess how complex the factual and legal questions the judge needs to review are and how much time he or she will need. They also must take into account that it is not always necessary to provide written documents to enable a judge to make an emergency decision. At least in straightforward cases, there are no constitutional concerns if the competent judge decides solely on the basis of oral information and if he or she issues the search warrant orally, as long as he or she afterwards documents the warrant in writing in a timely manner.

If the investigative authorities consider the situation to be one of imminent danger and order the search themselves, they have to document the circumstances upon which their decision was based in the individual case. This is necessary to meet the requirements under the guarantee of effective legal protection under Art. 19 sec. 4 GG.

3. a) If the investigative authorities bring the case before the competent investigative judge or on-call judge by requesting a warrant, their emergency competence ends. This is the case as soon as the public prosecutor requests the warrant from the competent judge, enabling him or her to perform an initial assessment of the merits of the case. By contrast, it is not decisive when the court actually starts reviewing the merits of the case or when it issues its final decision. There is no discretionary power of the investigative judge or the on-call judge; in particular, no such power follows from the independence of the judge guaranteed by the Basic Law (Art. 97 sec. 1 GG).

Even if there is a risk of losing evidence, e.g. because the judge demands a written application or requests an investigative file, or because he or she orders further investigation or simply has not yet decided, the emergency competence of the investigative authorities does not re-emerge. This holds true irrespective of the reasons for which the judicial decision on the search warrant is not taken. As soon as the case is brought before the judge, it is his or her duty to ensure the preventive protection of fundamental rights required under Art. 13 sec. 2 GG while also ensuring the respect of the constitutional duty of effective criminal prosecution.

If, however, the attempt to bring the case before the court fails because the competent judge and his or her deputy cannot be reached despite sustained efforts, and if this leads to a risk of losing evidence, recourse to the emergency competence of the investigative authorities is possible. In such a case the documentary duties that derive from Art. 19 sec. 4 GG also entail describing the attempts to contact the competent investigative judge or on-call judge and the respective deputy.

b) The emergency competence of the investigative authorities can only re-emerge if, after the judge had become involved, factual circumstances occur or become known that were not revealed during the assessment of and the decision on the request, and that thereby there is a risk of losing evidence that excludes the possibility of obtaining a judicial decision on time. However, it results from Art. 19 sec. 4 GG that in such a case the relevant circumstances have to be documented in a way that allows for a judicial review [translator’s note: ex post] of whether there in fact has been an emergency.

c) The emergency competence of the investigative authorities cannot be based on the way the court administration is organised internally. This follows from the duty of state organs to ensure that there are adequate personnel and infrastructure to guarantee effective implementation of the requirement of preventive judicial review on the one hand and a properly functioning administration of criminal justice on the other hand. Shortcomings in this area do not justify limiting the preventive judicial protection of fundamental rights intended by Art. 13 sec. 2 GG. Otherwise, practice would determine the law instead of law determining practice. Such arrangements are foreign to states governed by the rule of law.

4. The orders challenged by the admissible constitutional complaints do not meet those constitutional requirements. In all three proceedings, the public prosecutor’s emergency competence no longer existed after the competent investigative judge or his or her deputy had become involved. In the proceedings 2 BvR 2718/10 it is irrelevant whether and in how far the public prosecutor’s order was intended to avert the potential threat to life and limb of the caller. If necessary, such threats must be countered by police measures. In proceedings 2 BvR 2808/11 the fact that the investigative judge was unable to decide on the search request because he had to decide on continuation of custody in another case – which he deemed to be more important – does not result in the re-emergence of the public prosecutor’s emergency competence.