Search (law)
A search in the legal sense is the search of a person or thing for objects or to find people. It is an instrument of law enforcement , the -vollzuges and the security .
The search of persons is to be distinguished from the examination of persons; During the search, the person's clothing as well as the body surface and easily accessible body orifices (e.g. mouth, nose and ears) are searched. An examination, on the other hand, relates to the inside of the body ( stomach contents , etc.) and the genital area. Compared to a search, an investigation is only possible under very limited conditions, as it interferes with the rights of the person concerned.
In the case of a house search, special regulations apply, in particular because in Germany the fundamental right of Article 13 of the Basic Law on the inviolability of the home and in Austria Article 9 of the State Basic Law on the inviolability of the house rules are affected.
Criminal searches
A search is regularly a serious encroachment on the fundamental right to the inviolability of the home . Sections 102 to 110 of the Code of Criminal Procedure (StPO) form the legal basis for a search in the context of criminal prosecution .
The search serves the following purposes:
- the apprehension of a perpetrator or participant in a criminal act (seizure search)
- the discovery of evidence (investigation search)
- the seizure of objects forfeited or confiscated (see Section 111b, Paragraph 4 of the Code of Criminal Procedure)
The gripping designates each allowed arrest , the same due to which legal base (z. B. §§ 81, 112, 127, 230 , para. 2 or § 457 CCP).
Discovered evidence can according to §§ 94 ff. Code of Criminal Procedure provided or confiscated are; The same applies to forfeiture and confiscation items .
The search can take place on the suspect ( § 102 StPO) as well as on other persons ( § 103 StPO), whereby the principle of proportionality must be observed in each case . Particularly high demands on proportionality arise when lawyers 'and criminal defense lawyers' offices and editorial rooms are searched.
A prerequisite for a search of the suspect is sufficient factual evidence that a certain criminal act has been committed and, based on criminal experience, the presumption exists that the purpose of the search (see above) can be achieved (concrete initial suspicion , Section 102 StPO), but not yet sufficient suspicion .
The object of the search can be the suspect's home or other premises (e.g. work or business premises ). Temporary use (e.g. in hotel rooms) is sufficient. In addition, the suspect himself can be searched; this includes a search of the clothing worn, as well as the surface of the body or natural body openings (e.g. the oral cavity). Other items belonging to the suspect (e.g. handbag or vehicle) can also be the subject of the search.
A search of other persons in accordance with Section 103 StPO can only be carried out if more stringent requirements are met: Either the findings supporting the search must allow the reasonable conclusion, the accused could be in the rooms to be searched, or the assumption must appear justified, traces or evidence could be with the object being searched.
However, possible objects to be searched are identical (apartment, other rooms and other things belonging to the other person and the person themselves).
According to Section 103, Paragraph 1, Clause 2 of the Code of Criminal Procedure, a search of apartments and other rooms is permitted even if they are located in a building which, on the basis of facts, can be assumed to have committed a criminal offense according to § 89a StGB (preparation of a serious act of violence endangering the state) or according to § 129a StGB (formation of terrorist organizations), also in connection with § 129b StGB (criminal and terrorist organizations abroad).
If the accused is in the premises of Section 103, Paragraph 1, Clause 1 of the Code of Criminal Procedure at the time of the apprehension, or if he enters them during persecution, the restrictions of this norm do not apply ( Section 103, Paragraph 2 of the Code of Criminal Procedure).
The search is ordered by the responsible investigating judge , in the case of imminent danger also by the public prosecutor or - in the case of the accused - by their investigators ( Section 105 (1), Section 165 of the Code of Criminal Procedure). This order can be given orally, by telephone or in writing. However, the judge should put them in writing. Because of the encroachment on the privacy of those affected, the Federal Constitutional Court sets high standards for the content of the search warrant. It must describe the offense, the commission of which gives rise to the search. In addition, in the case of house searches, actual information about the allegation must be provided, provided that this would not jeopardize the purpose of the investigation. Furthermore, the purpose is to state the aim and extent of the search. If the search is used to find evidence, these are to be identified as far as possible, if necessary approximately. Such a search warrant is not, however, permanently valid. The Federal Constitutional Court assumes a duration of six months in this regard. The search must be completed within this period.
Searches to apprehend the suspect or convicted person are always permitted on their premises and without a special search order based on the arrest , presentation or placement warrant ; no new copy is necessary in case of escape.
The search order is carried out by the public prosecutor's office or mostly by their investigators (pursuant to Section 152 GVG ) ( Section 36 (2) sentence 1 StPO).
House search
A community official or two members of the community are to be called in as witnesses for a search of an apartment , business premises or pacified property, unless the judge or public prosecutor himself takes part in the search ( Section 105 (2) StPO). The person concerned can waive this right, although the witnesses are also intended to protect the searching officers from unjustified accusations. Searching these premises is not permitted at night (9:00 p.m. to 4:00 a.m. or 6:00 a.m., see Section 104, Paragraph 3 of the Code of Criminal Procedure) unless the accused is being prosecuted in the act, there is a risk of delay or the search serves to recapture an escaped prisoner ( Section 104 (1) StPO). A violation of the provisions on the calling in of witnesses, as well as those at the time of the search, makes the search illegal, but does not result in a ban on exploitation .
The measures taken by the officials are to be tolerated by those affected and may also be enforced by force. A temporary arrest of the interferer for the duration of the measure is permissible according to § 164 StPO.
The owner of the premises to be searched has the right to be present in accordance with Section 106 (1) Sentence 1 of the Code of Criminal Procedure, whereby, in accordance with Sentence 2, a representative should be called in if he is absent.
The inspection of documents found during the search is reserved for the public prosecutor, who can, however, delegate this task to his investigators ( Section 110 (1) StPO).
After the end of the measure, the person concerned must be given written notification of the reason for the search and a list of the confiscated objects must be given ( Section 107 StPO). As a rule, this is done without express request by handing over a copy of the search warrant, insofar as this is available in writing, and a copy of the minutes in which the confiscated items are listed.
Accidental finds that indicate other criminal offenses and were not the basis for the search authorization can be confiscated in accordance with Section 108 of the Code of Criminal Procedure.
Criticism of the house search in Germany
After the powers of investigative authorities in Germany to combat terrorism were expanded at the beginning of the 21st century, a social debate about basic rights ensued, in the context of which the house search became a subject of discussion. The judge of the Federal Constitutional Court Rudolf Mellinghoff criticized in a newspaper interview that many searches are illegal and without sufficient suspicion or even for the purpose of intimidation and discipline . The basic right to the inviolability of the home is “unfortunately not so good”, which is also shown by the high proportion of illegal house searches in the successful constitutional complaints. The main focus is often on the legal principle of proportionality.
The well-known defense lawyer Udo Vetter regularly criticizes house searches and demands that an automatic ban on the use of evidence should be introduced for evidence found during illegal searches. Otherwise there is no incentive for the officials responsible to respect the basic rights of the accused, since illegal acts usually have no legal or other personal consequences and courts almost never impose a ban on the use of evidence.
Search in security law
Apart from the jurisdiction of the Federal Police , the legality of security searches is determined by state law . The regulations differ in detail, but consistently show the following characteristics:
- Searches generally require a specific cause in the form of danger
- Searches of people are generally to be carried out by officials of the same sex
- Searches are to be limited to what is necessary
- Investigations are only permitted if there is a risk to life or limb
In the police and regulatory law of the individual federal states, there are special legal bases for searches by the police and regulatory authorities.
Remedies
The judge's search order - and, for the public prosecutor's office, also the non-order - can be challenged with a complaint under Section 304 StPO. A judicial decision analogous to Section 98 (2) sentence 2 of the Code of Criminal Procedure is possible against search orders issued by the public prosecutor and its investigators ; after completion of the measure, this will be aimed at establishing its illegality .
literature
- Tido Park: Manual Search and Seizure: with a special section on company searches . 2nd edition CH Beck, Munich 2009, ISBN 978-3406595646 .
Web links
- Christoph Burchard, "Robber or Gendarme?" Self-defense against unannounced house searches as reflected in German-American comparative law [1]
- Sebastian Wohlwend, The search, especially with third parties according to § 103 Abs. 1 S. 1 StPO [2]
Individual evidence
- ↑ BVerfG, decision of November 10, 2017, Az. 2 BvR 1775/16, full text
- ↑ BVerfG, decision of November 6, 2014, Az. 2 BvR 2928/10, full text .
- ↑ BVerfG, decision of February 1, 2005, Az. 1 BvR 2019/03, full text .
- ↑ a b BGH, decision of June 13, 1978, Az.StB 51/78, full text = BGHSt 28, 57 = NJW 1978, 1815 (quoted from: Sigrid Hegmann, in: Beck'scher Online-Comment StPO, 20th edition , As of January 15, 2015, Section 103, Rn. 5 f.)
- ^ Taz : Constitutional judge on searches: Many are unconstitutional , October 28, 2011
- ↑ Lawblog : Fruits of the forbidden tree may continue to be harvested , July 28, 2009
