Unlawfulness of the search and the visual inspection procedure pursuant to § 110 StPO
In extensive and complex investigation proceedings against a client from the healthcare sector, the Hamburg Regional Court clarified the limits of the visual inspection procedure pursuant to § 110 of the German Code of Criminal Procedure (StPO) and thus strengthened the procedural rights of those affected (decision of 5.6.2025 – Ref.: 616 Qs 14/25)
The facts of the case:
During a search in 2019, the investigating authorities had provisionally seized numerous documents pursuant to Section 110 StPO. This standard allows documents to be inspected to determine their relevance as evidence, but not to be analyzed in depth without a court order. Depending on the result of the inspection, either a seizure order must be applied for or the items must be returned. However, the documents taken were extensively analyzed by the LKA Hamburg (State Criminal Police Office Hamburg) for over 4 ½ years (!). A motion for formal seizure was only submitted in 2024 following the objection to this procedural violation.
The main points of the decision:
- A substantive evaluation of the material’s content as part of the screening process is inadmissible.
- The inspection period of more than 4 ½ years is disproportionate, even in complex and extensive proceedings.
- Sifting continues until return or formal confiscation takes place. The mere notification to the person concerned and/or their legal counsel that the inspection has been completed cannot replace a formal decision.
- Despite these multiple violations of the law, the Regional Court did not assume any intentional or arbitrary conduct on the part of the public prosecutor’s office.
Conclusion:
The decision confirms what is already recognized in case law and literature – and yet repeatedly gets out of hand in practice.
It is worthy of criticism that the regional court (presumably to avoid prohibitions on the use of evidence) did not attest to any intentional or arbitrary conduct on the part of the public prosecutor’s office, but instead referred to a “widespread misunderstanding” within the investigating authorities – as if this made things better. In fact, the old principle of “Iura novit curia” (“The court knows the law”) also applies to public prosecutors.
However, the clear decision should contribute to further awareness-raising. If the widespread, unlawful practice is nevertheless upheld in the present proceedings, it is likely that in future there will be a deliberate (and therefore arbitrary) disregard of the judge’s reservation of jurisdiction with the possible consequence of a ban on the use of evidence. It therefore remains essential for the defence to always keep an eye on compliance with procedural requirements and to consistently complain about procedural errors.
