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Russell Miller


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Gregor Bachmann
Nina Boeger
Matthias Casper
Helge Dedek
Hans-Michael Heinig
Florian Hoffmann
Alexandra Kemmerer


Senior Editorial Board: 

Betsy Baker
Gralf-Peter Calliess
Patrycja Dabrowska
Elisa Hoven
Jen Hendry
Karen Kaiser

Malcolm MacLaren
Stefan Magen
Ralf Michaels
Christoph Safferling
Frank Schorkopf
Emanuel Towfigh
Floris de Witte


The Decision of the Federal Constitutional Court of 3 March 2004 on Acoustic Supervision of Housing Space


By Jutta Stender-Vorwachs
Abstract
Read the Full Contribution as a PDF


A.

  On March 3, 2004, the Bundesverfassungsgericht (German Federal Constitutional Court) decided that the regulations in the Strafprozessordnung (StPO – Code of Criminal Procedure) concerning acoustic surveillance of housing space (the so called "Großer Lauschangriff") partly violate the Grundgesetz (GG – German Constitution or Basic Law). Article 13.3 of the Basic Law itself, which in 1998 integrated the right to acoustic surveillance of housing for reason of prosecution into the Basic Law, was nonetheless found to be constitutional. In the following comment, the legal status, the political background of the constitutional change in 1998 and the essential content of the Court's decision shall be examined in detail.

B.

  By constitutional change in 1998, Article 13 of the Basic Law, concerning the inviolability of housing space, was amended at subsections 3 through 6. Article 13.3 of the Basic Law now allows acoustic surveillance of housing space under the following circumstances:

- that clear facts give the reasons for the suspicion that someone has committed a severe crime defined individually by law,

- that the accused person probably will stay in the housing, and

- that the exploration of the facts by other means is out of proportion or offers no prospects of success.

  Article 13.3 of the Basic Law was implemented by the statute concerning the improvement of the fight against organized crime. The central provision implemented by Article 2 of this statute was § 100(c)(1)(3) StPO. According to its terms, the words of a person under suspicion, which are not officially spoken in a home, are allowed to be intercepted and recorded with technical devices if certain facts arouse suspicion that the person has committed an offence specified in the provision (so called "Katalogtaten").

  The catalogue of offences especially contains offences that are typically associated with organized crime. Additionally some offences against national security are enumerated.

  Surveillance is allowed only if it is aimed at...



 
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