What is a judicial stamp

from practice criminal tax law (PStR) 1998, 147

(I would like to thank the editorial staff of "PStR" for the kind permission to post this article from "PStR" on my homepage.)

Checklist

Examination of the legality of the search warrant

by judge at the OLG Detlef Burhoff, Ascheberg

Despite the importance that the search warrant has for the proceedings, search warrants issued by the investigating judges responsible for this in the local courts are often inadequate because the requirements necessary for an effective search warrant are not observed. Knowledge of these is of considerable practical importance for the tax advisor, who is often asked for advice before a lawyer / defense attorney in connection with a search carried out in criminal tax proceedings. The following article should therefore present the related questions (for further details see Burhoff, Handbook for the criminal investigation procedure, 1997, margin no. 12 margin no.219 ff.). With the following checklists, every search warrant should be checked for its legality so that legal remedies can be lodged if necessary (cf. Burhoff in PStR 6/98, 114).

I. Judicial Search Order

Decisive for the legality requirements to be observed is both who orders the search and who is to be searched. The non-judicial search order is only permissible under strict conditions (see II below). For the question of the extent to which the search target must be specified, it is also decisive whether the accused is searched in accordance with Section 102 StPO or in the case of uninvolved third parties according to Section 103 StPO (see Krekeler in PStR 1/98, 4 ff. And PStR 2/98, 28 ff.). The following points must be checked in the judicial search order:

1. Search of the accused according to § 102 StPO

Question

answer

  • a) Is the search warrant required in writing?

Yes. According to h.M. in criminal procedural literature, the judicial search warrant must always be drawn up in writing.

  • b) Is the signature of the judge available?

The search warrant must be signed as a judicial decision.

  • c) What information on the allegation is required?

aa) The offense giving rise to the search must be identified. In this respect, it is necessary that, in addition to the statutory criminal offense, the decision contains sufficient factual information about the criminal offenses to be investigated, i.e. describes specific facts.

 

bb) Just as later in the indictment and judgment, a life issue must be presented and subsumed under a norm. However, the so-called simple initial suspicion within the meaning of Section 152 (2) StPO is sufficient, but mere assumptions are not sufficient. For criminal tax proceedings for assessment taxes, this means that - as far as this is possible according to the status of the proceedings - the taxpayer, tax type and year must be specified (BVerfG, 2 BvR 910/88, criminal defense lawyer 90, 483)

  • d) What information about the aim and purpose must the search warrant contain?

The aim and purpose of the search must be described, e.g. finding evidence and / or apprehending the accused.

  • e) What information about the search item must the decision contain?

The rooms to be searched must be clearly identified. This applies particularly to the so-called "other rooms" within the meaning of Section 102 of the Code of Criminal Procedure. This can be work, business and business premises, but also ancillary rooms such as garages.

  • f) How exactly must the evidence sought be described?

The objects searched for and possibly confiscated during the search do not have to be specifically described in detail. However, they must be described at least approximately, if necessary in the form of exemplary information, according to their type and conceivable content in the resolution. General information on the evidence is insufficient (see LG Wiesbaden, NJW 79, 175 with reference to BVerfG NJW 76, 1735). The following information is not sufficient: "Evidence that is related to the advance sales tax returns from Company X and their application for an investment allowance" (see below).

  • g) Are statements about the suitability of evidence required?

No. A justification in the search warrant is not considered necessary. In this respect, the assumption based on experience is sufficient.

  • h) Are statements about the so-called presumption of discovery required?

No. In this respect, too, a justification in the search warrant is not considered necessary. The assumption based on experience is also sufficient.

  • i) Which statements have to be made regarding the question of proportionality?

In principle, the order (and implementation) of the search must be proportionate to the seriousness of the offense and the strength of the suspicion and must be necessary and suitable. The extent to which the question of proportionality has to be discussed in the search warrant is controversial; the prevailing opinion assumes that this is not necessary. In my opinion, statements on proportionality should in any case be necessary if the offenses involved are petty offenses (also Krekeler in PStR 1/98, 5). Incidentally, they should also be required if the circumstances of the case suggest them. This can be the case, for example, if the question arises as to whether the AO's funds should not be exhausted in the context of a tax audit (see Streck defense lawyers 84, 348, 350).

  • k) Is the search warrant associated with a seizure warrant?

If the search warrant, which is often the case in practice, is combined with a seizure warrant at the same time, the objects to be seized must be specified in the warrant. In this respect, the statements on f) apply accordingly. However, in the case of extensive seizures, it is not necessary to discuss the suitability of each individual item as evidence (BVerfG wistra 95, 139).

2. Search of uninvolved third parties according to § 103 StPO

For the search of uninvolved third parties, partially different - stricter - requirements apply to the search warrant. An uninvolved third party within the meaning of Section 103 of the Code of Criminal Procedure is someone who is not suspected of having committed or participated in the offense on which the proceedings are based. This can also be the tax advisor himself, for example.

Question

answer

  • a) Is the search warrant required in writing?

as above I, 1 under a).

  • b) Is the signature of the judge available?

as above I, 1 under b).

  • c) What information about the allegation is required?

as above I, 1 under c). However, a concise version of the information on the protection of the accused is considered permissible.

  • d) What information about the aim and purpose must the search warrant contain?

as above I, 1 under d).

  • e) What information about the object of the search must the decision contain?

as above I, 1 under e).

  • f) How exactly must the evidence sought be described?

In contrast to the case of the accused, only the search for specific evidence is permitted. These must be specifically identified in the search warrant.

  • g) Are statements about the suitability of evidence required?

In contrast to the accused, the suitability of the evidence must be established, but generally does not need to be justified.

  • h) Are statements about the so-called presumption of discovery required?

Yes. The so-called presumption of discovery must result from concrete, proven facts and must be justified in the resolution.

  • i) Which statements have to be made regarding the question of proportionality?

The question of proportionality must at least be addressed in the decision.

  • j) Is the search warrant associated with a seizure warrant?

The search may not relate to objects that may not be seized according to Section 97 of the Code of Criminal Procedure.

II. Non-judicial search warrant

In urgent cases, the so-called "imminent danger", the search can also be ordered by the public prosecutor's office, the tax investigator or the administrative fines and criminal offense in accordance with Section 105 (1) of the Code of Criminal Procedure. For a non-judicial search order issued by them, the statements made under I, 1 and 2 above apply accordingly, albeit with the following deviations.

1. Search of the accused according to § 102 StPO

Question

answer

  • a) Who can order the search?

The public prosecutor and / or the tax investigators can order the search of the accused himself.

  • b) Does the arrangement need a certain shape?

No. A specific form is not required. The search can also be ordered orally.

  • c) Do special arrangement requirements have to be met?

The order of a search by the public prosecutor and / or tax investigators is only permitted in the case of "imminent danger". This is the case if the judicial order of the measure cannot be obtained without endangering the purpose of the search. "Imminent danger" does not exist if there is and was sufficient time to obtain a search warrant.

2. Search of uninvolved third parties according to § 103 StPO

Question

answer

  • a) Who can order the search?

as above II, 1 under a.

  • b) Does the arrangement need a certain shape?

as above II, 1 under b.

  • c) Do special arrangement requirements have to be met?

as above II, 1 under c.

III. Prohibition of the use of evidence

If, according to the above principles, the search order issued is incorrect, the question arises whether this may lead to a ban on the use of evidence. The related issues are highly controversial. They cannot be presented here in detail. In summary, it should only be pointed out that the case law generally rejects prohibitions on the use of evidence (a.A. e.g. Krekeler NStZ 93, 263, 265, if the search order is too vague). Something else also applies if "imminent danger" has been arbitrarily assumed (cf. OLG Stuttgart NJW 77, 2276).


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