P113. The influence of the constitutional protection of the home on the regulation of covert investigative measures – Constitutional requirements and the principle of proportionality

• In Event: Poster Session & Ice Cream Social

Abstract

In 1998, the constitutional legislator enabled acoustic surveillance of homes for the purpose of combating organized crime within repressive police law. This can be carried out by secretly installing listening devices inside the home or by placing them on its exterior. Previously, criminal procedural measures were limited to searches; today, they can rely on covert surveillance measures, thereby penetrating the privacy of homes. However, it is not only the covert nature of these measures that introduces a novelty in criminal proceedings. The legislator has shifted the concept of home protection, which was previously defined by the physical element of spatial entry, towards information protection, which carries an intangible component. Now, communication within a home can be captured through technical means without ever physically entering it. Beyond acoustic surveillance, other forms of information gathering out of a home are not explicitly authorized. It is undeniable that information captured from outside a home, but originating within it, still retains a connection to the home itself. In line with international rules, the home is attributed special significance for personal development, which, in German law, is an expression of human dignity. Different legal requirements apply to privacy in homes compared to privacy in other locations or telecommunication, justified by the argument that the home builds a "last refuge" isolated from social life.
This raises the question of how the convergence of spatial home protection and intangible information protection affects the design of surveillance measures that do not require physical intrusion. Possible future authorizations could include visual observation from a distance using high-performance binoculars or the deployment of drug-sniffing dogs. This fundamentally raises questions about absolute limits on investigative measures for information gathering and calls for the need to balance concerns of security and freedom of individuals within the framework of the principle of proportionality.

Author

• Marlen Luu Graf, Freie Universität Berlin