6 Brev fra Bundesministerium der Justiz i Tyskland 9. august 2010 til Justis- og politidepartementet

Coercive scene-of-death investigations without suspicion of a criminal offence

In response to your request regarding German legislation on coercive scene-of-death investigations allow me to make the following remarks:

At the federal level, there do not exist any regulations requiring an examination of the scene-of-death in cases of sudden and unexpected infant death. In non-criminal cases, the legislative competence for such a regulation falls to the Länder.

The German Constitution, the Grundgesetz, determines in its Article 13 paragraph 1 the inviolability of the home. Searches may be authorised only by a judge or, when time is of the essence, by other authorities designated by the laws" (s. paragraph 2). ”Searches” means the purposive searching by governmental authorities for subjects or objects or the examination of facts (fact-finding) hid by the owner. The latter would describe the situation of a coercive scene-of-death investigation in case of sudden death of small children where official authorities enter the home against the owner's will. Searches are by Constitution only allowed in the manner described by the laws. It is not explicitly stated in Article 13 of the Grundgesetz that searches of homes are only admissible in the case of the suspicion of a criminal offence, although it is the condition for acoustical surveillance of homes (s. paragraph 3). The searching of somebody's home, however, is a profound interference with basic rights which can only be justified by the protection of fundamental interests, e.g. the protection of life or criminal justice. Also, it needs the rigorous compliance with the principle of proportionality. Therefore, the searching of somebody's home by official authorities without any suspicion of a criminal offence would be very questionable regarding the constitutional protection of the inviolability of home. In our view, the same principles apply to article 8 of the European Convention on Human Rights.

I hope this short overview of the legal situation in Germany can be of assistance. I apologize for the delay in answering your request and am at your disposal in case you have further questions or require additional information.

Yours sincerely,