The search of an apartment is among the most well-known means of prosecution. Time and again in crime films you can see how police officers or prosecutors stand at the door of an apartment and demand access to the apartment by presenting a search warrant. But under what conditions can police officers search an apartment in Germany and who decides?
When can the police in Germany search an apartment and who decides?
Under what circumstances an apartment in Germany can be searched by the police and who can order a search depends decisively on the purpose for which the search is conducted. It may be justified in order to avoid danger or in order to prosecute a crime.
A search of the dwelling for the purpose of prosecuting a crime
In Germany, a search of the home for the purpose of prosecuting an offence is regulated by §§ 102-110 of the Criminal Procedure Code (Strafprozeßordnung). Its purpose is to find the perpetrator or evidence.
Who in Germany can order a search of an apartment?
In Germany, a house search must be ordered by a judge. The public prosecutor’s office and in some cases its investigators, i.e. the police, can only order a search of a house or apartment if danger is imminent. A search order in Germany usually does not need to be in writing and can therefore be issued verbally, for example by telephone. The only exception to this is a court search warrant. This must be in writing and contain the following information
- the name of the alleged offence
- the content of the criminal charge, provided that this does not jeopardize the purpose of
- the investigation
- the aim, purpose and scope of the search
- what evidence may be found
Where can a house search take place?
In Germany, it is possible to search both the offender’s home and the homes of others. While in the case of the perpetrator’s home, a search is possible if it is suspected that he is staying there or that evidence will be found there, stricter rules apply when searching the homes of other suspects. Therefore, there must be facts from which it can be inferred that the offender or evidence is on the premises to be searched. Mere suspicion is therefore not sufficient.
What rules apply to house searches in Germany?
First of all, a house search in Germany may not be conducted at night (from April 1st to September 31st: from 9pm to 4am, from October 1st to March 31st: from 9pm to 6am). However, exceptions apply if, for example, the perpetrator is being pursued and has been caught in the act of committing a crime or if there is imminent danger, as well as in the case of a pursuit of an escaping prisoner.
In addition, witnesses should be called to search the apartment. These can be either a judge, a prosecutor, or community officials. In addition, the homeowner has the right to be present. If he is not present, an attempt should be made to appoint his representative.
Residential searches to avoid danger
Another reason to search an apartment may be to prevent danger. In this case, a crime has not yet been committed, but there may be a risk of a crime being committed. The conditions under which the police may search an apartment to prevent danger are regulated by the relevant police and regulatory laws of the states.