FIFTH SECTION

CASE OF K.S. AND M.S. v. GERMANY

(Application no. 33696/11)

JUDGMENT

STRASBOURG
6 October 2016

This judgment will become final in the circumstances set out in Article 44
2 of the Convention. It may be subject to editorial revision.

K.S. AND M.S. v. GERMANY JUDGMENT

In the case of K.S. and M.S. v. Germany,

The European Court of Human Rights (Fifth Section), sitting as a
Chamber composed of:
Ganna Yudkivska, President,
Angelika Nuberger,
Andr Potocki,
Faris Vehabovi,
Sofra OLeary,
Carlo Ranzoni,
Mrti Mits, judges,
and Milan Blako, Deputy Section Registrar,
Having deliberated in private on 6 September 2016,
Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. The case originated in an application (no. 33696/11) against the
Federal Republic of Germany lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(the Convention) by two German nationals, Mr K.S. and Mrs M.S. (the
applicants), on 27 May 2011. The President of the Section acceded to the
applicants request not to have their names disclosed (Rule 47 4 of the
Rules of Court).
2. The applicants were represented by Mr F. Bielefeld, a lawyer
practising in Munich. The German Government (the Government) were
represented by one of their Agents, Mrs K. Behr, of the Federal Ministry of
Justice and Consumer Protection.
3. The applicants alleged, in particular, that the search of their residential
premises had violated Article 8 of the Convention, as the search warrant had
been based on evidence which had been obtained in breach of international
and domestic law.
4. On 3 December 2014 the complaint under Article 8 of the Convention
was communicated to the Government.

THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicants, Mr K.S. and his wife Mrs M.S., were born in 1939
and 1942 respectively and live in Lauf.

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A. The background to the case

6. In 2006 the German secret service (Bundesnachrichtendienst) bought
a data carrier from a certain K. for a considerable amount of money. The
data carrier contained financial data from the Liechtenstein L. Bank relating
to 800 people. K., who had formerly been an employee of the L. Bank, had
illegally copied the data. The data carrier was submitted to the German tax
investigation authorities, which subsequently instigated proceedings against,
inter alia, the applicants, in relation to tax evasion crimes.
B. The search warrant and house search
7. On 10 April 2008 the Bochum District Court (the District Court),
following an application from the Bochum prosecutors office, issued a
search warrant in respect of the home of the applicants, who were suspected
of having committed tax evasion between 2002 and 2006. The search
warrant allowed the seizure of papers and other documents concerning the
applicants capital, both inside and outside Germany, especially documents
concerning information on foundations and any documents that could help
to determine the true tax liability of the applicants since 2002.
8. The search warrant indicated that, in the course of investigations
against another suspect, the prosecution had obtained information that the
applicants had established the K. Foundation on 17 January 2000 and the
T.U. S.A. on 14 June 2000. The applicants were suspected of having
made financial investments via these two associations with the L. Bank in
Liechtenstein, for which they were liable for tax in Germany. According to
the search warrant, the applicants had failed to declare about 50,000 euros
(EUR) of the yearly interest accrued from the capital of both the K.
Foundation and T.U. S.A. in their tax returns for the years 2002 to 2006. It
indicated that the applicants had evaded tax payments of EUR 16,360 in
2002, EUR 24,270 in 2003, EUR 22,500 in 2004, EUR 18,512 in 2005 and
EUR 18,000 in 2006. The search warrant stated that the house search was
urgently needed in order to find further evidence and that, weighing the
seriousness of the alleged crimes against the constitutional rights of the
applicants, the house search was proportionate.
9. On 23 September 2008 the applicants flat was searched and one
envelope containing L. Bank documents and five computer files were
seized.
C. Proceedings before the Bochum District Court
10. The applicants appealed against the search warrant. They argued that
the warrant had not been granted in accordance with the law. It had been
based on material which had been acquired in breach of international law,

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especially the European Convention on Mutual Assistance in Criminal

Matters of 20 April 1959 and the Convention on Laundering, Search,
Seizure and Confiscation of the Proceeds from Crime of 8 November 1990,
because the data had been stolen from the L. Bank and had been bought by
the secret service. The acquisition of the data had also violated domestic
law, as the secret service had no authorisation to obtain tax data. In fact,
such an act was a criminal offence under German law, as it infringed
section 17(1) and section 17(2)(2) of the Unfair Competition Act
(divulgence of official secrets (Geheimnisverrat)). Furthermore, the secret
service was not authorised to forward tax data to the financial authorities
and the prosecution, as this infringed the German legal principle of
separation of the secret service and the police/prosecution
(Trennungsprinzip).
11. On 8 April 2009 the Bochum District Court dismissed the appeal. It
was of the view that the house search had been legal as it had been based on
a lawful search warrant. The court had no doubt that it had been lawful to
base the search warrant on the information contained in the Liechtenstein
data carrier, as, in its view, the data had neither been seized in direct
violation of international law nor by circumventing international treaties.
12. The District Court was also of the view that the search warrant in
question could be issued on the basis of the information in the data carrier,
as the secret service had only played a passive role in acquiring it.
According to the court, there was no indication that the secret service had
incited a third person to steal the data, and it had merely accepted the data
from a third person when this person had offered it. The fact that the secret
service might have remunerated the seller did not, in the courts view,
change the fact that the secret service had only played a passive role. In the
courts opinion, it was within the secret services remit to acquire the data
carrier in the prescribed way and hand the data over to the prosecution, as
the data carrier contained 9,600 sets of data concerning international cash
flows.
D. Proceedings before the Bochum Regional Court
13. On 7 August 2009 the Bochum Regional Court dismissed the
applicants appeal. It held that the search warrant had been lawful, even if it
was true that the German authorities had infringed domestic criminal law in
obtaining the evidence. Even assuming that the German authorities might
have committed the criminal offences of acting as an accessory to a
criminal offence (Begnstigung, Article 257 1 of the German Criminal
Code) and an accessory to the divulgence of official secrets (Beihilfe zum
Geheimnisverrat, section 17(1) and section 17(2)(2) of the Unfair
Competition Act, in conjunction with Article 27 of the German Criminal
Code) in buying the Liechtenstein data from K., and that K. might have

K.S. AND M.S. v. GERMANY JUDGMENT

committed the offence of industrial espionage (Betriebsspionage,

section 17(2)(1) of the Unfair Competition Act), it considered the search
warrant to have been lawful. With regard to the applicants allegation that
the data had been acquired in breach of international law, the Regional
Court doubted any such breach.
14. As regards the question whether illegally obtained evidence could be
used in criminal proceedings, the Regional Court referred to a decision of
the same court of 22 April 2008, where it had held in a similar case and with
regard to the same data carrier that the interest in prosecuting the suspects
outweighed the possible infringements of criminal law, as the principal
criminal act of data theft had been committed by a third party and not by
the German authorities. According to the well-established case-law of the
Federal Court of Justice, evidence that had been illegally acquired by a third
party could generally be used in criminal proceedings, unless it had been
acquired through coercion or force. It also had to be considered that the use
of the stolen data had not infringed the core of the applicants private
sphere, but their business affairs. Furthermore, the data theft had not
primarily infringed the rights of the applicants, but the data-protection rights
of the bank from which it had been stolen. Thus, the Liechtenstein data
was not excluded as evidence and the search order could be based on it. As
to the presumed breach of international law, the court added that such a
breach would not lead to the unlawfulness of the search warrant, firstly
because international law did not grant the applicants any personal rights
and secondly because the use of the evidence did not in itself constitute a
breach of international law.
E. Proceedings before the Federal Constitutional Court
15. On 11 September 2009 the applicants lodged a constitutional
complaint with the Federal Constitutional Court. They were of the view that
the Regional Court and the District Court should have decided that the
search warrant had not been in accordance with the law, as the use of the
Liechtenstein data as a basis for a search warrant had violated international
treaties and the sovereignty of Liechtenstein, which had protested against
the use of the data.
16. Furthermore, they argued that their right to respect for their home
under Article 13 of the Basic Law had been infringed, as the search warrant
had been based on evidence that had been acquired by the secret service and
passed on to the prosecution in violation of domestic law. The data purchase
from K. had constituted a criminal act. Moreover, the secret service had no
authority under German law to purchase such data. Furthermore, the transfer
of the Liechtenstein data from the secret service to the financial authorities
and the prosecution had violated the principle of the separation of the secret
service and the prosecution in Germany. The infringement of domestic law

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had been so severe that the criminal courts should have come to the
conclusion that the Liechtenstein data could not have formed the basis of a
search warrant. They would thus have been obliged to declare the search
warrant illegal.
17. On 9 November 2010 the Federal Constitutional Court dismissed the
constitutional complaint as manifestly ill-founded. It found that the fact that
the search warrant had been based on the Liechtenstein data did not infringe
Article 13 of the Basic Law.
18. The Federal Constitutional Court reiterated that there was no
absolute rule that evidence which had been acquired in violation of
procedural rules could never be used in criminal proceedings (compare
paragraph 28 below). The court further pointed out that it had to be borne in
mind that the case at hand did not concern the question of whether evidence
could be admitted in a criminal trial, but only concerned the preliminary
question of whether evidence that might have been acquired in breach of
procedural rules could form the basis of a search warrant in criminal
investigation proceedings. Even if evidence was considered inadmissible in
criminal proceedings, this did not automatically mean that the same was true
for all stages of criminal investigations.
19. Furthermore, the court reiterated that it was not its role to substitute
itself for the authorities in the interpretation and application of domestic
law, but to review, in the light of the Basic Law, the decisions taken by the
authorities in the exercise of their margin of appreciation.
20. In applying these general principles to the case at hand, the Federal
Constitutional Court ruled, at the outset, that it was not necessary to decide
upon the question whether the acquisition of the data had been in breach of
national or international law or violated the principle of the separation of the
secret service and the prosecution in Germany, as the Regional Court had
departed in its decision from the applicants allegation that the evidence
might in fact have been acquired in breach of domestic and international
law, including criminal law.
21. The Federal Constitutional Court found that the fact that the
Regional Court based its legal assessment on the assumption that the
acquisition of the data had been in breach of domestic and/or international
law was not arbitrary and hence could not be found to be in violation of
Article 13 of the Basic Law. Its finding that the applicants could not invoke
international law in their favour only showed a different legal opinion
without disregarding the applicants basic rights. Furthermore, the Federal
Constitutional Court considered reasonable the District and Regional
Courts legal assessment that the principle of separation of the secret service
and the prosecution had not been infringed, as the facts of the case did not
show that the secret service had either ordered or coordinated the data
theft, but had been offered the data on K.s own initiative. Acquiring data
in such a way and passing it on to the prosecution could not violate the

K.S. AND M.S. v. GERMANY JUDGMENT

principle of separation, and hence could not render a search warrant

unconstitutional.
22. With regard to the Regional Courts finding that the search order
could be based on the Liechtenstein data the Federal Constitutional Court
found that the Regional Courts legal assessment sufficiently took into
account the applicants basic rights as the Regional Court had departed from
the applicants allegation that the evidence had been obtained in breach of
domestic law and thus based its decision on, what was, for the applicants,
the best possible assumption.
23. The Federal Constitutional Court further considered that the
Regional Court had struck a fair balance between the different interests at
stake. The alleged breach of national and/or international law did not entail
an imperative prohibition to use the evidence in the proceedings at issue.
Furthermore, the Regional Court had rightly pointed out that the data did
not relate to the core area of the applicants private life, but to their business
activities. It had recognized the decisive interest at stake, namely the
applicants right to inviolability of their home, and took it sufficiently into
account, as nothing showed that German authorities purposely and
systematically breached international or domestic law in obtaining the data
carrier.
F. Criminal proceedings before the Nuremberg District Court
24. On 2 August 2012 the Nuremberg District Court acquitted the
applicants of the charges of tax evasion, finding that it had not been proven
beyond reasonable doubt that the capital of the foundation in question had
been invested in an interest-bearing way.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Provisions of the German Constitution (the Basic Law)
25. Article 13 of the Basic Law guarantees the inviolability of a persons
home. The relevant part reads:
Article 13 of the Basic Law
(1) The home is inviolable.
(2) Searches may be authorised only by a judge or, when time is of the essence, by
other authorities designated by the laws, and may be carried out only in the manner
therein prescribed. ...

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B. Provisions of the Code of Criminal Procedure

26. The rules and safeguards relating to the search of a persons home
and the seizure of objects found during the search are regulated by
Articles 102 to 108 of the Code of Criminal Procedure, the relevant parts of
which read:
Article 102
A body search, a search of the property or of the private or other premises of a
person who, as a perpetrator or as an instigator or accessory before the fact, is
suspected of committing a criminal offence, or is suspected of being an accessory
after the fact or of obstructing justice or of handling stolen goods, may be made for
the purpose of his arrest, as well as in cases where it can be presumed that the search
will lead to the discovery of evidence.
Article 105
(1) Searches may be ordered only by a judge or, in exigent circumstances, also by
the public prosecutors office and the officials assisting it. ...

C. Rules and practice on the admissibility of evidence

27. The German Code of Criminal Procedure does not contain general
rules about the admissibility of evidence, apart from Article 136a, which
provides that confessions obtained by torture, inhuman or degrading
treatment or unlawful coercion must not be used as evidence against the
defendant.
28. However, according to the well-established case-law of the Federal
Constitutional Court (see, inter alia, file nos. 2 BvR 2017/94
and 2 BvR 2039/94 of 1 March 2000, and no. 2 BvR 784/08 of 28 July
2008) and the Federal Court of Justice (see, inter alia, no. 5 StR 190/91 of
27 February 1992), other than the prohibition contained in Article 136a,
there is no absolute rule that evidence which has been acquired in violation
of procedural rules cannot be used in criminal proceedings
(Beweisverwertungsverbot). Generally, the courts have to consider all
available evidence in order to ascertain objectively whether a defendant is
guilty or not, as a State cannot function if it does not guarantee that
perpetrators will be prosecuted and convicted (see Federal Constitutional
Court, no. 2 BvL 7/71 of 19 July 1972). The prohibition on the use of
evidence therefore has to remain an exception (see Federal Court of Justice,
no. 3 StR 181/98 of 11 November 1998). Such a prohibition is, however,
imperative in the case of a serious, deliberate or arbitrary breach of
procedural rules which has systematically ignored constitutional safeguards.
Such a prohibition is also imperative where evidence has been obtained in
violation of constitutional rights which affect the core of private life (see,
inter alia, Federal Constitutional Court, no. 2 BvR 1027/02 of 12 April

K.S. AND M.S. v. GERMANY JUDGMENT

2005). Whether there is a prohibition on the use of evidence cannot be

decided in a general way, but has to be determined on a case-by-case basis.

THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
29. The applicants complained that the search of their residential
premises had violated Article 8 of the Convention, as the search warrant had
been based on evidence which had been obtained in breach of international
and domestic law. Article 8 of the Convention reads:
1. Everyone has the right to respect for his private and family life, his home and
his correspondence.
2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others.

30. The Government contested that argument.

A. Admissibility
31. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 3 (a) of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
1. Whether there was an interference
32. It is common ground between the parties that the search complained
of amounted to an interference with the applicants right to respect for their
home, and the Court sees no reason to hold otherwise.
2. Whether the interference was justified
33. Accordingly, it has to be determined whether the interference was
justified under paragraph 2 of Article 8, in other words whether it was in
accordance with the law, pursued one or more of the legitimate aims set
out in that paragraph and was necessary in a democratic society to achieve
the aim or aims in question.

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(a) In accordance with the law

34. As to the question of whether the measure was in accordance with

the law, the Courts case-law has established that a measure must have some
basis in domestic law, with the term law being understood in its
substantive sense, not its formal one. In a sphere covered by statutory
law, the law is the enactment in force as the competent courts have
interpreted it (see Robathin v. Austria, no. 30457/06, 40, 3 July 2012).
Domestic law must further be compatible with the rule of law and accessible
to the person concerned, and the person affected must be able to foresee the
consequences of the domestic law for him (see, among many other
authorities, Robathin, cited above, 40; and Kennedy v. the United
Kingdom, no. 26839/05, 151, 18 May 2010).
35. In the present case, the Court notes that the search of the applicants
premises was based on the relevant provisions of the German Code of
Criminal Procedure, namely Articles 102 and 105 of the Code of Criminal
Procedure (see paragraph 26 above). As regards the foreseeability of their
application in the present case, the Court takes note of the settled case-law
of the Federal Constitutional Court according to which there was no
absolute rule that evidence which had been acquired in violation of
procedural rules could not be used in criminal proceedings (see
paragraph 28 above). In these circumstances the Court finds that the
applicants were able to foresee if necessary with the aid of legal advice
that the domestic authorities would consider that the search warrant could
be based on the Liechtenstein data despite the fact that they may have been
acquired in breach of law. The Court therefore considers that the measure
complained of was in accordance with the law.
(b) Whether the interference pursued a legitimate aim

36. The Court further observes that the search in issue was ordered in the
context of criminal investigations on suspicion of tax evasion initiated
following the purchase of a Liechtenstein data carrier. It therefore served a
legitimate aim, namely the prevention of crime (compare Camenzind
v. Switzerland, 16 December 1997, 40, Reports of Judgments and
Decisions 1997-VIII).
(c) Whether the interference was necessary in a democratic society
(i) The parties submissions

37. The applicants argued that their right to respect for their home had
been infringed, as the search warrant had been based on evidence that had
been acquired in violation of German domestic and international law. The
data purchase from K. had constituted a criminal act. Moreover, the secret
service had no authority under German law to purchase such data.

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K.S. AND M.S. v. GERMANY JUDGMENT

38. The infringement of German domestic law had been so severe that
the Liechtenstein data could not have been used to justify the search
warrant. Therefore, the interference with their right to respect for their home
had not been proportionate to the aim pursued. Furthermore, the house
search had been excessive, as it had even included an examination of their
will.
39. The Government submitted that the search warrant had been in
compliance with the second paragraph of Article 8 of the Convention. The
decision to carry out a search had been based on a reasonable suspicion that
the applicants might have committed tax evasion between 2002 and 2006.
Moreover, the search warrant had been subjected to prior judicial control
and contained reasons justifying its issuance. Accordingly, the applicants
had enjoyed sufficient safeguards against abuse.
40. The Government pointed out that the Regional Courts decision had
balanced the applicants right to respect for their home with the public
interest in criminal prosecution. It had even assumed that the acquisition of
the Liechtenstein data had been by way of a criminal act, but had held that
this could justify a search warrant whose objective in investigative
proceedings was to find additional evidence in order to secure an effective
criminal prosecution.
41. It emerged from the Governments submissions including the
enclosed documents that the data set in question was the first set of tax data
acquired by German authorities. Furthermore, the above-mentioned
decisions of the Bochum Regional Court were among the first decisions
with regard to the question whether unlawfully obtained data could serve as
the basis of a search warrant.
(ii) The Courts assessment

42. In accordance with the Courts established case-law, the notion of

necessity implies that an interference corresponds to a pressing social
need and, in particular, is proportionate to the legitimate aim pursued. In
determining whether an interference is necessary in a democratic society,
the Court will take into account that a margin of appreciation is left to the
Contracting States (see Keegan v. the United Kingdom, no. 28867/03, 31,
ECHR 2006-X). However, the exceptions provided for in paragraph 2 of
Article 8 are to be interpreted narrowly, and the need for them in a given
case must be convincingly established (see Mastepan v. Russia,
no. 3708/03, 40, 14 January 2010, with further references; Smirnov
v. Russia, no. 71362/01, 43, 7 June 2007; and Miailhe v. France (no. 1),
25 February 1993, 36, Series A no. 256-C).
43. As regards searches of premises and seizures in particular, the Court
has consistently held that the Contracting States may consider it necessary
to resort to such measures in order to obtain physical evidence of certain
offences (see Vasylchuk v. Ukraine, no. 24402/07, 79, 13 June 2013). The

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11

Court will assess whether the reasons put forward to justify such measures
were relevant and sufficient, and whether the aforementioned
proportionality principle has been adhered to (see Smirnov, cited above,
44).
44. As regards the latter point, the Court must first ensure that the
relevant legislation and practice afford individuals adequate and effective
safeguards against abuse (see Socit Colas Est and Others v. France,
no. 37971/97, 48, ECHR 2002-III, and Funke v. France, 25 February
1993, 56, Series A no. 256-A). Secondly, the Court must consider the
specific circumstances of each case in order to determine whether, in the
particular case, the interference in question was proportionate to the aim
pursued. The criteria the Court has taken into consideration in determining
this latter issue are, inter alia: the severity of the offence in connection with
which the search and seizure were effected; the manner and circumstances
in which the order was issued, in particular whether any further evidence
was available at that time; the content and scope of the order, having
particular regard to the nature of the premises searched and the safeguards
implemented in order to confine the impact of the measure to reasonable
bounds; and the extent of possible repercussions on the reputation of the
person affected by the search (see Buck v. Germany, no. 41604/98, 45,
ECHR 2005-IV, and Smirnov, cited above, 44).
45. With regard to the safeguards against abuse provided by German
legislation and established practice in cases involving searches like the one
in the present case, the Court notes that such measures may, except in
exigent circumstances, only be ordered by a judge under the limited
conditions set out in the Code of Criminal Procedure (see paragraph 26
above). However, whilst a highly relevant consideration, the fact that an
application for a warrant has been subject to judicial scrutiny will not in
itself necessarily amount to a sufficient safeguard against abuse. Rather, the
Court must examine the particular circumstances and evaluate whether the
legal framework and the limits on the powers exercised were an adequate
protection against arbitrary interference by the authorities (see Cronin
v. the United Kingdom (dec.), no. 15848/03, 6 January 2004).
46. The Court observes that, according to Article 102 of the Code of
Criminal Procedure, a search of a property is dependent on reasonable
grounds for suspecting that a person has committed an offence and the
presumption that the search will lead to the discovery of evidence (see
paragraph 26 above). Furthermore, the person concerned may also challenge
the legality of a search warrant in cases where the order has already been
executed (compare Buck, cited above, 46). The Court notes lastly that,
under the settled domestic case-law, even though there is no absolute rule
that evidence which has been acquired in violation of procedural rules
cannot be used in criminal proceedings, the Federal Constitutional Court
held that the use of evidence was prohibited in cases of a serious, deliberate

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K.S. AND M.S. v. GERMANY JUDGMENT

or arbitrary breach of procedural rules which systematically ignored

constitutional safeguards (see paragraph 28 above).
47. In the present case, the applicants made a complaint to the Bochum
District Court, which was called upon to review the lawfulness of the search
warrant. After the Bochum District Court dismissed the complaint, the
Bochum Regional Court also reviewed the lawfulness of the search warrant
(see paragraphs 13 and 14 above). The Court further notes that the Regional
Court not only assessed whether the search warrant complied with the
domestic provisions, but also whether the taking of the Liechtenstein data as
basis for the search warrant complied with the settled case-law of the
Federal Constitutional Court with regard to the use of evidence in criminal
proceedings. Thus the safeguards provided for by German legislation and
jurisprudence against abuse in the sphere of searches in general can be
considered both adequate and effective and to have been complied with in
the instant case.
48. As to the proportionality of the search warrant to the legitimate aim
pursued in the particular circumstances of the case, the Court, having regard
to the relevant criteria established in its case-law, observes in the first place
that the offence in respect of which the search warrant was issued was tax
evasion, an offence which affects State resources and their capacity to act
in the collective interest. As such, tax evasion constitutes a serious offence;
a fact underlined in a case such as this where the suspected tax evasion
related to the sum of approximately EUR 100,000 (see, in this regard, the
OECD Convention on Mutual Administrative Assistance in Tax Matters,
developed in 1988 and amended in 2010, according to which the tackling of
tax evasion forms a top priority for all member states). Furthermore, in this
field - the prevention of capital outflows and tax evasion - States encounter
serious difficulties owing to the scale and complexity of banking systems
and financial channels and the immense scope for international investment,
made all the easier by the relative porousness of national borders (compare
Cremieux v. France, no. 11471/85, 39, 25 February 1993; and Funke,
cited above, 56).
49. With regard to the manner and the circumstances in which the order
was issued, the Court observes that the search was ordered to find further
evidence. Furthermore, the Liechtenstein data were the only evidence
available at the relevant time that suggested that the applicants might have
evaded paying tax. The search warrant therefore appears to have been the
only means of establishing whether the applicants were in fact liable for tax
evasion (contrast Buck, cited above, 49). It is the gist of the applicants
complaint, in this context, that the search warrant had been based on
evidence which had been obtained by a flagrant breach of international and
domestic law and which, therefore, should have been excluded as a basis for
the warrant (see paragraphs 37 and 38 above).

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13

50. The Court notes in this respect that the Federal Constitutional Court
did not find it necessary to decide whether the data carrier had been
obtained in breach of international and domestic law, as the Regional Court
had based its decision on, what was, for the applicants, the best possible
assumption, namely that the evidence might in fact have been acquired
unlawfully. Consequently, this Court finds it unnecessary to determine this
issue in the present case, but will operate on the same assumption.
51. The Court attaches particular weight to the fact that it is uncontested
that, at the time the search warrant was issued, few, if any, relevant data sets
other than the one at issue had been purchased by German authorities, and
only a few sets of criminal proceedings relying on unlawfully obtained tax
data as an evidential basis had been instigated (compare paragraph 41
above). Furthermore, these sets of criminal proceedings had been instigated
on the basis of the present data set (see paragraph 14 above). Thus, no
material submitted by the parties indicates that, at the relevant time, the
domestic tax authorities were purposely acting in the light of any
established domestic case-law confirming that unlawfully obtained tax data
could be used to justify a search warrant. Neither does the fact alone that,
according to the well-established case-law of the Federal Constitutional
Court (see paragraph 28 above), there is no absolute rule that evidence
which has been acquired in violation of the procedural rules cannot be used
in criminal proceedings, imply that the authorities purposely obtained the
data in breach of international or domestic law.
52. Moreover, nothing in the material before the Court indicates that the
German authorities, at the relevant time, deliberately and systematically
breached domestic and international law in order to obtain information
relevant to the prosecution of tax crimes. The Federal Constitutional Courts
findings in so far (see paragraph 23 above) have not been contested by the
applicants.
53. The Court further notes that any offence which the German
authorities might have committed in purchasing the data carrier from K.
would have consisted of acting as an accessory to a criminal offence and
acting as an accessory to the divulgence of official secrets, and that K.
might have committed the offence of industrial espionage (compare
paragraph 13 above). Therefore, the German authorities, in issuing the
search warrant, did not rely on real evidence obtained as a direct result of a
breach of one of the core rights of the Convention. Moreover, the data
carrier contained information concerning the financial situation of the
applicants, which they were obliged to submit to the domestic tax
authorities, but no data closely linked to their identity (compare G.S.B.
v. Switzerland, no. 28601/11, 93, 22 December 2015).
54. Considering the content and scope of the search warrant, the Court
notes that it named the grounds on which it was based, namely that the
applicants were suspected of having made financial investments in

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K.S. AND M.S. v. GERMANY JUDGMENT

Liechtenstein for which they were liable for tax in Germany, but failed to
declare about EUR 50,000 of yearly interest in their tax returns for the years
2002 to 2006. Furthermore, the search warrant stated that the house search
was urgently needed in order to find further evidence (see paragraph 7
above). As regards the scope of the warrant, the Court observes that it
allowed the seizure of papers and other documents concerning the
applicants capital, both inside and outside Germany, especially documents
concerning information on foundations and any documents that could help
to determine the true tax liability of the applicants since 2002. The Court
considers therefore that the search warrant was quite specific in its content
and scope, containing an explicit and detailed reference to the tax evasion
offence being investigated, with an indication of the items sought as
evidence (contrast Roemen and Schmit v. Luxembourg, no. 51772/99, 70,
ECHR 2003-IV; and Robathin, cited above, 47). Thus, nothing indicates
that the warrant was not limited to what was indispensable in the
circumstances of the case.
55. With regard to the scope of the search warrant the Court further
takes note of the applicants allegation that the search covered the
examination of their will. The Court attaches weight to the fact that,
although a document of a very private nature, a will may contain
information about property value. As the investigating officer did not seize
the applicants will, but only one envelope with L. Bank documents and five
computer files (see paragraph 9 above), the Court considers that the mere
inspection of the will did not impinge on the applicants private sphere to an
extent that was disproportionate (contrast Smirnov, cited above, 48).
56. Lastly, having regard to possible repercussions on the reputation of
the person affected, the Court observes that, in the present case, the
applicants did not allege any adverse effect on their personal reputation as a
consequence of the executed search of their private premises.
57. Taking into account that a margin of appreciation is left to the
Contracting States in respect of domestic law and practice regulating the
conditions under which residential premises may be searched (see
paragraph 42 above), the domestic courts cannot be said to have
overstepped their margin of appreciation, in particular, in basing the search
warrant on the Liechtenstein data and considering the interference with the
applicants right to their home proportionate to the legitimate aim pursued.
The interference with the applicants rights under Article 8 of the
Convention was thus necessary in a democratic society.
58. Accordingly, there has been no violation of Article 8 of the
Convention.

K.S. AND M.S. v. GERMANY JUDGMENT

15

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

59. The applicants further complained under Article 6 of the Convention
that their right to equality of arms had been infringed during the impugned
proceedings in which they had challenged the house search, as they had
been denied access to information concerning the role of the secret service,
the protocols of K.s hearings and the original data-carrier.
60. The applicants also complained that their right to be heard had been
infringed, as the domestic courts had not considered all the arguments put
forward with regard to the breach of international law and the right of the
secret service to pass on the data to the prosecution.
61. Furthermore, there were many indications that the German
authorities played an active role in the purchase of the Liechtenstein data
and that K. had been incited by the German secret service.
62. However, in the light of all the material before it, and in so far as the
matters complained of are within its competence, the Court finds that they
do not disclose any appearance of a violation of Article 6 of the Convention.
63. It follows that this part of the application is manifestly ill-founded
and must be rejected under Article 35 3 (a) and 4 of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaint under Article 8 of the Convention admissible and
the remainder of the application inadmissible;
2. Holds that there has been no violation of Article 8 of the Convention.
Done in English, and notified in writing on 6 October 2016, pursuant to
Rule 77 2 and 3 of the Rules of Court.

Milan Blako
Deputy Registrar

Ganna Yudkiska
President

In accordance with Article 45 2 of the Convention and Rule 74 2 of

the Rules of Court, the separate opinion of Judge Vehabovi is annexed to
this judgment.

G.Y.
M.B.

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K.S. AND M.S. v. GERMANY JUDGMENT SEPARATE OPINION

CONCURRING OPINION OF JUDGE VEHABOVI

I voted with my colleagues in this case albeit with some hesitation on
account of the particular features of the applicants case as well as the
general situation in Germany in respect of the rules and practice concerning
the admissibility of evidence.
In my opinion the Chamber should have paid more attention to the
principles of subsidiarity and the margin of appreciation in this particular
case. There is some reflection of these principles, but they should have been
the prevailing considerations in deciding on the outcome of this case.
In so far as the domestic courts in the present case examined the
applicants allegations that the decision to issue the search warrant had been
based on unlawfully obtained evidence, which meant that the interference
was not in accordance with domestic and international law an issue
addressed in paragraphs 34-35 of the judgment the following principles
should have been further developed and addressed in this judgment. In the
case of Goranova-Karaeneva v. Bulgaria (no. 12739/05, 46, 8 March
2011), the Court concluded as follows: It is primarily for the national
courts to interpret and apply domestic law ... While the Court should
exercise a certain power of review in this matter, since failure to comply
with domestic law entails a breach of Article 8, the scope of its task is
subject to limits inherent in the subsidiary nature of the Convention, and it
cannot question the way in which the domestic courts have interpreted and
applied national law, except in cases of flagrant non-observance or
arbitrariness (see Kruslin v. France, 24 April 1990, 29, Series A
no. 176 A; Huvig v. France, 24 April 1990, 28, Series A no. 176 B; and,
mutatis mutandis, Galovic v. Croatia, no. 54388/09 (dec.), 5 March 2013,
58-61). In the present case (as in any other) the Courts role is limited to
determining whether the domestic courts rulings (see paragraphs 10-23 of
the judgment) were or were not arbitrary, as any arbitrariness will render the
interference unlawful (see, mutatis mutandis, Slivenko and Others v. Latvia
(dec.) [GC], no. 48321/99, 105-06, ECHR 2002-II).
On a more general level this judgment should have reflected on whether
the foreseeability requirement inherent in the notion of lawfulness was
satisfied in the instant case: can an individual, even with the benefit of legal
advice, foresee that his house may be searched and his belongings seized on
the basis of a warrant which has been procured through reliance on financial
information concerning him that is covered by banking secrecy and has
been stolen by a third party?
In the case of G.S.B. v. Switzerland, no. 28601/11, 22 December 2015,
the Court concluded as follows1:

The judgment cited here exists only in French.

K.S. AND M.S. v. GERMANY JUDGMENT SEPARATE OPINION

17

89. The Convention institutions have established certain principles governing the
disclosure of sensitive information, particularly information of a medical nature (see
Z. v. Finland, 25 February 1997, Reports of Judgments and Decisions 1997I, and
M.S. v. Sweden, 27 August 1997, Reports 1997IV), information concerning a
politicians financial situation (see Wypych v. Poland (dec.), no. 2428/05, 25 October
2005) and tax-related data (see Lundvall v. Sweden, no. 10473/83, Commission
decision of 1 December 1985, Decisions and Reports (DR) 45, p. 121).
90. It follows from the principles established in these cases that the Court takes into
account in this regard the fact that the protection of personal data is of fundamental
importance to a persons enjoyment of his or her right to respect for private life as
guaranteed by Article 8. The domestic law must therefore afford appropriate
safeguards to prevent any such communication or disclosure of personal data as may
be inconsistent with the guarantees in Article 8. At the same time, the Court accepts
that the interest in protecting the confidentiality of data may be outweighed by the
interest in investigation and prosecution of crime and in the publicity of court
proceedings, where such interests are shown to be of even greater importance. Lastly,
the Court recognises that a margin of appreciation should be left to the competent
national authorities in striking a fair balance between the public interests pursued, on
the one hand, and the interests of a party or a third person in maintaining the
confidentiality of such data, on the other hand (see, in particular, Z. v. Finland, cited
above, 94, 95 and 97-99).
91. These principles relating to the disclosure of certain information have been
widely reaffirmed and developed by the Court in cases concerning the retention of
personal data (see, in particular, S. and Marper v. the United Kingdom [GC],
nos. 30562/04 and 30566/04, CEDH 2008, and Khelili v. Switzerland, no. 16188/07,
61 et seq., 18 October 2011). It is against this background that the Court will
examine the impugned interference with the applicants right to respect for his private
life.

The reasoning provided in the present judgment should have been

narrower and focused on the principles established in G.S.B. v. Switzerland.
Generally speaking, in the majority of European legal systems but not in
Germany, the principle of the fruit of the poisonous tree acts as an absolute
obstacle to the use of such evidence in criminal proceedings against the
applicant or the possibility for a court to base its final conclusions
(conviction) on it. I have no doubt that the criminal proceedings started
from the moment when the relevant authorities took the first steps in the
criminal investigation against the applicant. In many European legal
systems the admission in criminal proceedings against the applicant of
evidence acquired in violation of criminal procedure laws or of human
rights would lead to the removal of this evidence from the case file. In
Germany, a very small number of legal provisions contain a ban on the use
of evidence. Hence, any prohibition on the use of evidence has to be
explicitly provided for by law or result from weighing the public interest in
prosecuting the perpetrators of criminal acts against the legal interests of the
defendant. We, as judges of the European Court, have to be aware of certain
limitations even when our own legal background is different, but in these

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K.S. AND M.S. v. GERMANY JUDGMENT SEPARATE OPINION

cases the emphasis should be on two core principles of the European

Convention, namely subsidiarity and the margin of appreciation.