Online Search in Criminal Proceedings in Germany

Online searches are considered the most severe investigative intervention in the German Code of Criminal Procedure. It involves an intervention in an information technology system (IT system) used by the person concerned to collect data from it. In addition to the search, it is also possible to monitor the usage behaviour of end devices such as PCs, tablets, and smartphones. Furthermore, the term IT system also includes the cloud. However, the decisive factor for online cloud search is whether the accused person uses it as a storage medium.

The high intensity of the online search results is that the investigating authorities have access to valuable data. This also includes personal information and data on whose confidentiality the person concerned trusts. Online searches are possible without the knowledge of the person concerned. Therefore, the intrusion is usually carried out covertly by software from the outside so that one can only defend oneself against the measure once it has already been carried out. If you are affected by an online search, please contact our German criminal defence lawyers to have the legality of the measure carefully examined.

Online searches infringe on the fundamental right to integrity and confidentiality of information technology systems, also known as the IT fundamental right. This is an independent manifestation of the general right of personality under Article 2 (1) German Constitution (GG) in conjunction with Article 1 (1) GG (BVerfG, judgment of 27 February 2008, ref.: 1 BvR 370/07, 1 BvR 595/07). Therefore, there are exceptionally high requirements for the justification of interventions.

Since the online search is a particularly intrusive investigative measure, it requires strict prerequisites according to § 100b StPO. First, there must be suspicion that the person concerned is the perpetrator of or a participant in a severe criminal offence. In addition, the suspicion of only a simple offence is also sufficient. In principle, a simple fear is adequate but must not be insignificant (BGHSt 41, 30, 33). This requires a sufficient factual basis. Concerning whether there is fair suspicion, the investigating judge has a margin of appreciation.

In addition, the offence must be severe in the individual case so that encroachment on IT systems’ fundamental right to integrity and confidentiality can be justified. This is assessed according to the consequences of the offence for the affected legal interests.

Finally, the “subsidiarity clause” must be respected (§ 100b (1) no. 3 StPO). According to this clause, the online search is only permissible to investigate the facts, or determining the whereabouts of the accused person would be significantly more difficult or futile by other means. This means that other investigative measures are unavailable, have no prospect of success, would be considerably more time-consuming, and would lead to worse or insufficient findings.

If the conditions for ordering an online search no longer apply, the measures taken based on the order must be terminated immediately. If such a measure has been ordered against you and you have doubts about whether the relevant requirements were met, don’t hesitate to contact our criminal law team.

§ 100b (2) StPO conclusively lists the severe offences that may justify an online search and investigation in Germany. This catalogue was expanded in 2021 with the “Act on the Further Development of the Code of Criminal Procedure and the Amendment of Other Provisions”. For example, all punishable offences by a maximum term of imprisonment of at least ten years were newly included. This includes, for example, computer fraud committed commercially as a member of a gang that has joined forces to commit certain offences continuously (§ 100b (2) StPO).

The catalogue consists of severe offences regarding the legal interest violated and the threat of punishment. Furthermore, it also includes crimes that often cannot be solved by other means (Soiné, in NStZ 2018, 497, 498). According to the catalogue, the suspicion of simple gang theft, according to § 244 (1) StPO, a serious case of bribery or corruption and commercial receiving of stolen goods is sufficient to justify an online search in Germany.

In principle, online searches in Germany may only be carried out on the accused person themselves. However, there are exceptions to this. First, the examination of the IT system of a third person is permissible if the accused uses this IT system. However, this is only the case if the search of the accused´s IT system alone is insufficient to investigate the facts of the claim or determine the whereabouts of a co-accused. On the other hand, the online search measure may also be ordered if a third person is unavoidably affected.

Online searches are ordered by the decision of the competent court at the request of the public prosecutor´s office; in case of imminent danger, the presiding judge alone may order the measure (§ 100e (2) StPO). The order must be justified, setting out the prerequisites and the essential considerations. However, in principle, an error in the reasoning alone does not lead to the inadmissibility of the findings obtained from the online search (BGH, order of 1.8.2002, ref.: 3 StR 122/02, marginal no. 14).

It should be noted that the order is to be limited to a maximum of one month. It may, however, be extended by up to one month at a time, providing that the prerequisites continue to exist, considering the investigation results (§ 100e (2) StPO). If the order duration has been extended to six months, the Higher Regional Court (OLG) decides on further extensions.

In principle, utilising the findings obtained from the online search is left to the adjudicating court (§ 244 (2) StPO). However, some prohibitions and restrictions on utilisation must be observed. If the measure affects data concerning the core area of private life, the limits of § 100d StPO apply. In principle, such data may not be used. They must be deleted immediately or submitted by the public prosecutor´s office to the ordering court to decide on the usability and deletion of the data (§ 100d (3) StPO).

An exploitation prohibition also arises concerning an online search of the IT system of a person with the right to refuse to testify. Thus, an online search is inadmissible in the case of a professional secrecy holder´s right to refuse to testify, or the data obtained from it may not be used. They must be deleted immediately (§ 100d (5) StPO). Even in the context of the right of the accused´s relatives to refuse to testify according to § 52 StPO, utilisation is only permissible under certain conditions (§ 100d (5) StPO).

Furthermore, exploitation prohibitions and restrictions are also possible if the order’s requirements have been violated. Our German criminal defence lawyers carefully check whether a prohibition of exploitation or at least a restriction applies in your case and advise you on your further course of action.

Since online searches mostly take place covertly, the only option often left for the persons concerned is to defend themselves against the measure after the fact. Our team of lawyers for German criminal law carefully examines whether the online search directed against you was lawful. In particular, it is possible to object to using the evidence obtained from the online search. If the measure proves to be unlawful, a ban on the use of evidence may apply.

The sooner you contact an experienced criminal defence lawyer, the better are your chances of defending your case. Our professional criminal law team will reliably and competently assist you and advise you in German and English. We will be happy to answer your questions on the subject of online searches and other criminal proceedings. We are available to our clients nationwide with offices in Cologne, Düsseldorf and Aachen and conference rooms in Berlin, Frankfurt, Munich, Stuttgart and Hamburg.