No violation of article 6 after evidence found in unlawful search used against man, Strasbourg rules

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The applicant, Hans-Otto Prade, is a German national who was born in 1955 and lives in Hamburg.

In September 2004, on request of the prosecutor’s office, the Munich District Court issued a search warrant in respect of Mr Prade’s home and the homes of three co-suspects on suspicion that they had committed “copyright piracy” by selling counterfeit goods such as watches and computer programmes. In December 2004 his flat was searched. The police did not find any of the items for which they were looking. Instead, by coincidence, they discovered a large amount of hashish, which was found to be enough for more than 2000 consumption units. Subsequently the criminal proceedings on suspicion of “copyright piracy” were discontinued, and new proceedings on suspicion of possession and trafficking of a substantial amount of drugs were opened against him.

Mr Prade lodged a complaint against the search warrant before the criminal courts, which was dismissed by the district court and the regional court. He then lodged a constitutional complaint, and in November 2005 the Federal Constitutional Court found that the search had been unlawful and quashed the search warrant. Having weighed the few indications supporting the suspicion that Mr Prade could have committed “copyright piracy” against the infringement of his constitutional right to respect for his home, the Constitutional Court considered that the search warrant and the house search had not been proportionate.

In January 2006 the Hamburg District Court convicted Mr Prade of possession of a substantial amount of drugs in less serious circumstances and sentenced him to ten months’ imprisonment, suspended. The conviction was based exclusively on the hashish found during the house search.

Mr Prade appealed, arguing that the evidence should not have been admitted as the search warrant had been invalidated by the Federal Constitutional Court’s judgment of November 2005 and that the seizure of the hashish had not even been covered by the unlawful search warrant.

The appeal court quashed the district court’s judgment and referred the case back, finding that the district court had not sufficiently examined whether the hashish found in Mr Prade’s flat belonged to him, having regard in particular to the fact that he shared the flat with other people. In the resumed proceedings, Mr Prade made a statement to the effect that the room where the hashish had been found was being used exclusively by him.

In April 2007 the Hamburg District Court acquitted Mr Prade, finding that the hashish found in the flat could not be used as evidence against him, given that the initial suspicion of “copyright piracy” had been so vague that the issuing of a search warrant had not been justified. The acquittal was subsequently quashed by the regional court, which again convicted him of the drug-related offence and sentenced him to six months’ imprisonment, suspended.

The appeal court upheld the conviction, holding that in view of the seriousness of the crime the public interest in prosecution outweighed his interest in respect for his home because his rights had not been deliberately infringed, the house search had not been arbitrary and the amount of hashish found would theoretically have justified a house search.

On 2 July 2009, the Federal Constitutional Court dismissed a freshly lodged constitutional complaint by Mr Prade. It held in particular that the appeal court had balanced all the interests at stake in a way that was not arbitrary.

Relying in particular on article 6 § 1 (right to a fair trial) of the European Convention on Human Rights, Mr Prade complained that the evidence obtained in the execution of an invalid search warrant had been used in the proceedings against him.

The ECtHR stated in its judgement: “Having examined the safeguards which surrounded the evaluation of the admissibility and reliability of the evidence concerned, the nature and degree of the unlawfulness, and the use which was made of the material obtained through the impugned search, the court finds that the proceedings in the applicant’s case, considered as a whole, were not contrary to the requirements of a fair trial. It follows that there has been no violation of article 6 § 1 of the Convention.”