Constitutional requirements relating to the establishment of a judicial standby duty

Press Release No. 22/2019 of 29 March 2019

Order of 12 March 2019
2 BvR 675/14

It follows from Art. 13 of the Basic Law (Grundgesetz – GG) that courts are constitutionally obliged to ensure the availability of an investigating judge (Ermittlungsrichter), which also includes establishing a standby duty. During the day, an investigating judge must be available at all times, i.e. between 6 a.m. and 9 p.m. During the night, a standby duty must at least be established if it is needed more than exceptionally. It is the responsibility of the executive committee of the court (Gerichtspräsidium) in question to assess such a need with due discretion. The committee has a margin of appreciation and prognosis in respect of determining this need. For these reasons and upon the constitutional complaint of a person charged with a criminal offence, the Second Senate, in an order published today, reversed the court orders approving a night-time search that had been ordered by the public prosecution office, and remanded the matter to the Regional Court (Landgericht) for a new decision. The courts had not considered whether the requirement of a prior judicial decision (Richtervorbehalt) under Art. 13(2) GG entailed an obligation to provide for a standby duty for an investigating judge at the time in question.

Facts of the case:

1. In the early morning of 14 September 2013, an emergency team found the complainant and assumed that he had taken drugs. While the complainant was taken to hospital, police officers who had been called entered the complainant’s shared home in order to search for ID documents and for evidence of the substances used. In the complainant’s room, the police officers found, inter alia, cannabis products.

Based on this discovery, the police officers suspected the complainant of a drug-related offence. Therefore, they called the competent public prosecutor on standby duty, who, at 4:44 a.m., ordered the search of the home in order to seize evidence. The investigation file does not state that she attempted to contact the competent investigating judge beforehand. In the course of the following search of the complainant’s room and the common rooms, evidentiary material was seized.

The complainant’s applications for a court decision establishing the unlawfulness of the search measures as well as his respective complaints lodged with the Regional Court were unsuccessful. The complainant challenges this in his constitutional complaint, which the Senate admitted for decision only insofar as it relates to the second search ordered by the public prosecution office. Regarding the first search of the home conducted on the basis of police law, the complainant did not satisfy the statutory substantiation requirements.

2. In 2013, the competent Local Court (Amtsgericht) had a judicial standby duty on Saturdays and off-duty-days; accordingly, judges had to be present at the court from 10 a.m. until noon, and from 11 a.m. until noon on Sundays and public holidays. In the event that the public prosecution office or the police had previously announced urgent applications, the standby duty continued even after 12 noon. In addition, a judge was assigned to standby duty on all weekdays outside normal office hours whenever the police had previously indicated a need for judicial decisions in matters concerning the protection against threats in particular situations. In addition, a judicial on-call duty beginning after office hours (at 4:15 p.m. Monday to Thursday; at 3 p.m. on Fridays; at noon on Saturdays, Sundays and public holidays) and ending at 9 p.m. was in place. The judge assigned to on-call duty was competent only for urgent measures under criminal procedural law and decisions in individual cases pursuant to § 56 of the Mecklenburg-Western Pomerania Public Security and Order Act (Gesetz über die öffentliche Sicherheit und Ordnung in Mecklenburg-Vorpommern – SOG M-V) and § 40 of the Federal Police Act (Gesetz über die Bundespolizei – BPolG).

Key considerations of the Senate:

1. Art. 13(1) GG guarantees inviolability of the home. It guarantees individuals an elementary domestic space in light of their human dignity and in the interest of the free development of their personality. Within their private homes, individuals have the right to be left alone. Searches seriously interfere with this personal sphere protected by fundamental rights. In line with the weight of this interference and the constitutional significance of the protection of private space, search orders are, in principle, subject to a prior judicial decision pursuant to Art. 13(2) first half-sentence GG. The requirement of a preventive judicial decision reinforces the protection of the fundamental right of inviolability of the home and aims to provide preventive oversight of the measure by an independent and neutral body. At the same time, it follows from Art. 13 GG that all state organs are obliged to ensure that the requirement of a prior judicial decision, which protects fundamental rights, is implemented effectively.

According to the wording and the systematic approach of Art. 13(2) GG, judicial search orders are set out as the rule, non-judicial ones as the exception. Thus, the term “imminent danger” within the meaning of Art. 13(2) GG must be interpreted narrowly. As a rule, law enforcement authorities must therefore attempt to obtain an order issued by a competent judge before beginning a search. Only in exceptional situations where the delay caused by such an effort would jeopardise the success of the search, may they issue the order themselves on the grounds of imminent danger. The abstract argument that it is usually not possible to obtain a judicial decision at a certain time given that a competent judge is not available does not by itself justify the assumption of imminent danger. Imminent danger can only be assumed in such cases if a judicial standby duty in line with Art. 13(2) GG had not been established at the time and waiting until a judge is available is not possible. This corresponds with the constitutional obligation of courts to ensure the availability of an investigating judge which also includes establishing a standby duty.

A judicial standby duty that satisfies the practical effectiveness of the requirement of a prior judicial decision includes an investigating judge fully available during the day, even outside usual office hours. Reflecting living habits today, daytime signifies the period between 6 a.m. and 9 p.m. year-round. At night, a standby duty for an investigating judge must be established at least if it is needed more than exceptionally. The need at night is lower given that night-time searches of homes are permissible only in exceptional cases because of the special protection afforded to nightly repose (Nachtruhe). Art. 13(1) GG provides the constitutional basis for this special protection of nightly repose. Night-time searches are constitutionally permissible only as an exception since they interfere more seriously with the rights of the persons concerned than day-time searches. Even day-time searches of homes already amount to a severe interference with the constitutionally protected personal sphere of residents; in comparison, night-time searches additionally compromise nightly repose, and also the special sphere of private life related thereto.

In principle, the legislature also took this into account. Pursuant to § 104(1) of the Code of Criminal Procedure (Strafprozessordnung – StPO), homes, business premises and enclosed property, excluding the premises set out in § 104(2) StPO, may be searched during the night within the meaning of §104(3) StPO only in pursuit of a person caught in the act, in case of imminent danger, or for the purpose of re-apprehending an escaped prisoner. In practice, imminent danger is the most common exception; it covers circumstances in which delaying the search until daytime would likely jeopardise its success, for instance, where evidence might be destroyed in the meantime. Extending beyond what is laid out in § 104(3) StPO, it follows directly from Art. 13(1) GG that searches of homes between 9 p.m. and 6 a.m. year-round are subject to restrictions. Therefore, it can be assumed that search orders relating to homes will usually be needed less at night. This justifies the conclusion that standby duty for investigating judges between 9 p.m. and 6 a.m. is constitutionally required only if orders of night-time searches are needed more than exceptionally. Insofar as night-time searches are needed only exceptionally, the relation of rule to exception in Art. 13(2) GG is maintained even if the investigating judge is not available at night.

It is the responsibility of the executive committee of the court in question to decide with due discretion whether and to what extent orders of night-time searches are needed more than exceptionally and a standby duty of an investigating judge at night is required. The committee has a margin of appreciation and prognosis in respect of determining the need.

2. To the extent that they found the search order of the public prosecution office to be lawful, the challenged decisions adopted by the regular courts do not satisfy the above standards.

The Local Court did not even address the requirement of a prior judicial decision according to Art. 13(2) GG and did not review whether the public prosecutor on standby duty was authorised to order a search on grounds of imminent danger. The court’s decision of 30 January 2014 was insufficiently reasoned in that it was based only on the existence of an initial suspicion (Anfangsverdacht).

The Regional Court did not set aside the violation of the Constitution. While it addressed the question whether the public prosecutor on standby duty was allowed to presume her competence on grounds of imminent danger, it did not observe the constitutional requirements following from Art. 13(1) and (2) GG when interpreting the term imminent danger. Unlike what the Regional Court assumed, it could not remain unanswered whether the Local Court had complied with its obligation under Art. 13(1) and (2) GG to establish a standby duty for investigating judges.

The Regional Court evaluated the question whether there was imminent danger only on the basis of the actual options available to the public prosecutor in question and thus only on the basis of the actual availability of an investigating judge at the Local Court. It based its decision solely on whether the public prosecutor was right to assume that delaying the search until a judge on standby duty became available would have jeopardised the search. The Regional Court, however, did not attach importance to whether the Local Court was obliged to establish a standby duty for investigating judges for the time in which the public prosecutor was concerned with the matter.

A reference to the actual availability of an investigating judge on standby duty is tenable under constitutional law only if the specific set-up satisfies the requirements under Art. 13(1) and (2) GG. Accordingly, search orders issued by the public prosecution office or the police cannot be justified on the grounds of imminent danger if this danger results precisely from the fact that, in violation of Art. 13(1) and (2) GG, an appropriate standby duty for investigating judges has not been established. Although the investigating authorities cannot be accused of having violated their duties in such a case, this is irrelevant since the obligation to create the requirements for effective preventive judicial oversight applies to all state organs. This obligation could be undermined if the lawfulness of measures interfering with the fundamental right of Art. 13(1) GG were ultimately justified on the basis of a court’s organisation that is in constant violation of Art. 13(2) GG. If the executive committee of a court violates its obligation to establish a standby duty for investigating judges that reflects the approach taken by Art. 13(2) GG with regard to the relation of rule to exception, and if investigating authorities thus assume they are competent for issuing orders based on imminent danger, this leads to the unlawfulness and unconstitutionality of the search order.

The way in which the competent Local Court had set out the periods during which there was a standby duty in 2013 did not satisfy the requirements of Art. 13(1) and (2) GG. On 14 September 2013 – as on any other Saturday – a judge had to be present at the court on standby duty between 10 a.m. and noon, followed by on-call standby duty until 9 p.m. Between 6 a.m. and 10 a.m. no investigating judge was available. Thus, it was not guaranteed that an investigating judge was available at all times – regardless of any specific need – during the day; such an availability, however, must also be ensured on Saturdays, Sundays and public holidays without exception. At least from 6 a.m. onwards, an investigating judge would have had to be available. The Regional Court mistakenly assumed that standby duty started at 11 a.m., which would have satisfied the requirements of Art. 13(1) and (2) GG even less.

Thus, the Regional Court should have addressed the question whether the search order issued by the public prosecutor on standby duty on 14 September 2013 at 4:44 a.m. would have been justified on the basis of imminent danger had the standby duty for investigating judges been established in a constitutional manner. In the present case, it would have been reasonable to first establish whether the public prosecution office could have delayed the search without jeopardising it until 6 a.m., i.e. until the hypothetical and constitutional minimum requirement for the availability of an investigating judge, in order to apply for a judicial search order thereafter. Had the Regional Court concluded that this was not the case, given that the delay caused by the request for a court order would have jeopardised the success of the search, it would have had to address the question whether the executive committee of the Local Court should have ensured that, given the need for night-time search orders, an investigating judge was available when the public prosecution office issued the search order.