In a major case, our law firm recently obtained an interesting decision from the Hamburg Local Court on legal violations in inspection proceedings pursuant to § 110 of the German Code of Criminal Procedure (Ref.: 164 Gs 2118/24).
The two main points of attack were the disproportionately long duration of the inspection procedure and the fact that the content of the taken data had already been evaluated instead of merely being viewed for relevance or irrelevance as evidence.
Core statements of the decision:
- Unlawfulness of the evaluation: The manner in which the documents and data taken during the search on 17.12.2019 were reviewed was declared unlawful.
At 4 ½ years, the review took a disproportionately long time, and the content had already been analyzed before a judicial seizure order had been issued. This violates the criminal procedural requirement that a swift review and subsequent judicial seizure for the purpose of evaluation is only then permissible.
In its reasoning, the court expressly referred to a decision of the Regional Court of Hamburg in another case (decision of 15.04.2024, ref.: 162 Gs 149/20), which we also obtained. - Silence on letter of confirmation from the public prosecutor’s office irrelevant: What was remarkable and interesting about the facts of the case was that the public prosecutor’s office had informed the defence counsel in a letter dated 03.05.2021 that the inspection of the seized documents and EDP had been completed in accordance with § 110 StPO.
Although there is a basis of authorization under criminal procedure for such a notification – and certainly not for the silence in response – the Hamburg public prosecutor’s office argued in the appeal proceedings that the silence of the defence should be understood as consent to the further inspection and also to the evaluation of the content (voluntary surrender).
Fortunately, the Local Court decisively rejected this argument and found that the public prosecutor’s office would have been obliged to apply for seizure orders upon discovery of items relevant to the evidence, but at the latest upon conclusion of the Inspection procedure on 03.05.2021.
Therefore there is no such thing as “silence in response to a commercial letter of confirmation” in investigative proceedings. - No deliberate or arbitrary violation of the law / no prohibition of utilization due to a widespread misunderstanding on the part of the public prosecutor’s office: With regard to the asserted prohibition of utilization of evidence, the court ultimately found that the incorrect handling of the case by the investigating authorities was based on a widespread fundamental misunderstanding of the criminal procedural regulations regarding the visual inspection procedure.
From this widespread misunderstanding, the court drew the remarkable conclusion that the violation of the law was not to be regarded as serious or arbitrary, rejected a prohibition on the use of evidence and now ordered the seizure.
At this point, we disagree with the district court: similar errors in parallel proceedings do not make the violation better, but worse. Public prosecutors have to know and respect the legal situation. Moreover, a further indication of a serious and arbitrary violation of the law is the fact that there was not even a basis in criminal procedure for the notification regarding the conclusion of the inspection procedure – the silence on this should form the justification for the evaluation – it was simply “freestyle”.
We have therefore raised an objection to the use of the evidence and will assert the prohibition on the use of evidence in the further course of the proceedings.
This decision illustrates the importance of compliance with criminal procedural regulations and the consequences of disregarding them.
Please feel free to contact us at any time:
RA Dr. Oliver Pragal, specialist lawyer for criminal law
RA Wolfgang Prinzenberg (business mediator)
+49 40 28668220
mail@pragal-prinzenberg.de
