Concept and Definition of Mail Seizure
Mail seizure is an important institution in German criminal procedure law and refers to official measures for the seizure, opening, safekeeping, or evaluation of postal consignments. The aim of mail seizure is to secure evidence within the framework of investigations or to monitor the communication of suspects. The procedure constitutes a significant interference with the fundamental right to the privacy of correspondence under Art. 10 of the Basic Law (GG) and is therefore subject to strict formal requirements.
Mail seizure is mainly conducted in the context of prosecutorial and judicial investigations. It may apply to any kind of consignment held by a postal service provider, including letters, parcels, packages, and telegrams.
Legal Bases of Mail Seizure
Provisions in Criminal Procedure Law
The central legal basis for mail seizure in Germany is Section 99 of the Code of Criminal Procedure (StPO). According to this, documents, consignments, and other objects transported by postal or communication services may be seized for the purpose of securing evidence under certain conditions. Section 100 StPO additionally regulates the procedure for opening and inspecting such consignments.
Key conditions for ordering a mail seizure are the existence of initial suspicion, the necessity of the measure for obtaining evidence, and a judicial order, except in cases of imminent danger.
Section 99 StPO: Seizure of Mail Consignments
Section 99 (1) StPO permits investigating authorities to retain, stop, or demand the release of postal consignments in the custody of postal, telecommunications, and shipping companies, without the sender or recipient initially being notified.
Section 100 StPO: Opening and Inspection
The inspection and opening of such consignments under Section 100 StPO requires a judicial order. The measure must be clearly linked to the matter under investigation.
Infringements of Fundamental Rights
Mail seizure interferes with the secrecy of correspondence guaranteed by Article 10 (1) of the Basic Law. Such infringements are permissible under Article 10 (2) GG only on a legal basis and with observance of a proportionate procedure. To avoid an unlawful interference with fundamental rights, strict review standards and documentation obligations must be observed.
Requirements and Procedure of Mail Seizure
Requirements
Initial Suspicion
The measure presupposes the existence of sufficient initial suspicion of a prosecutable offence. General or vague indications are not sufficient.
Necessity
Seizure may only be ordered if it is necessary for the ascertainment and preservation of evidence, and if less intrusive means are not promising.
Judicial Reservation
A judicial order is generally mandatory. An order by the public prosecutor’s office is only permissible in cases of imminent danger (Section 99 (1) Sentence 2 StPO), but must then be promptly confirmed by the court retroactively.
Organization and Execution
- The main contacts for execution are the postal and telecommunications companies.
- The consignment is taken into custody, opened, and examined for relevant evidence.
- The inspection is carried out in the presence of a witness and with formal documentation.
Notification and Information Duties
Affected persons are generally entitled to information about the measure carried out. However, the information may be deferred if the purpose of the measure would otherwise be jeopardized (Section 101 (1) StPO).
Legal Consequences, Legal Protection, and Admissibility
Legal Consequences of Unlawful Measures
An unlawful mail seizure may result in a prohibition on the use of evidence. In criminal proceedings, it must be examined in each individual case whether and to what extent evidence obtained in violation of the secrecy of correspondence may be used.
Legal Remedies
Affected persons may lodge a complaint against the measure (Section 304 StPO). These legal remedies enable judicial review of the lawfulness of the mail seizure. If a prohibition on the use of evidence is established, any evidence obtained in this way must be excluded from the criminal proceedings.
Admissibility of Evidence
Admissibility depends on the circumstances of the individual case and a balance between the interest in prosecution and the right to privacy. In cases of serious procedural violations, use of the evidence is precluded.
Special Forms and Distinctions
Distinction from Telecommunications Surveillance
Mail seizure pertains exclusively to written and physical postal consignments. The monitoring of electronic communications, such as telephone calls or emails, is instead carried out via telecommunications surveillance in accordance with Sections 100a et seq. StPO.
Mail Seizure in Customs and Administrative Law
Similar regulations regarding securing goods sent by post can be found in customs law (e.g., Sections 215, 216 AO). There, the seizure of postal consignments may be ordered to secure tax revenues or in cases of suspected regulatory offences.
International Aspects
European Regulations
There are also European regulations governing the enforcement of judicial measures relating to postal consignments across borders, for example within the framework of joint investigation teams or on the basis of legal assistance treaties.
Mail Seizure in International Law
Enforcement in other countries generally takes place on the basis of international legal assistance and bilateral agreements.
Significance and Practical Relevance
Mail seizure is a central investigative tool in criminal proceedings. It involves a significant restriction of individual freedoms and is therefore only permissible under strict conditions. This instrument is routinely used in cases involving organized crime, serious economic crimes, or narcotics offences.
Literature and Further Links
- Sections 99, 100 Code of Criminal Procedure (StPO)
- Basic Law for the Federal Republic of Germany (especially Art. 10 GG)
- Decisions of the Federal Constitutional Court on the secrecy of correspondence
- Federal Ministry of Justice: www.gesetze-im-internet.de
Note: This summary explains the concept of mail seizure and does not constitute legal advice.
Frequently Asked Questions
When may a mail seizure be legally ordered?
Mail seizure is a serious restriction of the fundamental right to postal and telecommunications secrecy pursuant to Article 10 of the Basic Law and may only be carried out under strictly circumscribed legal conditions. The principal legal basis in criminal proceedings is Section 99 StPO (Code of Criminal Procedure). According to this, a court may order the seizure of postal consignments if certain facts give rise to the suspicion of a criminal offence and the measure is necessary for the clarification of this offence. In urgent cases, the order may also be issued by the public prosecutor’s office, but requires subsequent judicial confirmation. The decision must always be made with regard to proportionality, meaning the measure must be suitable, necessary, and reasonable. In addition, special protection provisions—such as for professional privilege holders like Rechtsanwalt (§ 97 StPO)—also limit the possibility of seizure.
Who may carry out and order a mail seizure?
The authority to order a mail seizure generally lies exclusively with the competent court (Section 100 StPO), most commonly the investigating court. The actual implementation of the measure—that is, securing and opening the consignments—is delegated to postal employees or the relevant investigative authorities (e.g., police, customs, public prosecutor’s office). The executing bodies are obligated to lawfully implement the orders and to ensure the protection of the rights of affected persons. In urgent cases, the public prosecutor’s office may exceptionally issue a provisional order but must have this confirmed by a court without delay.
In which cases is mail seizure inadmissible?
Mail seizure is inadmissible when it concerns communication between an accused person and their defence counsel, unless the communication serves the commission or continuation of criminal offences (Section 97 (1) StPO). Additionally, consignments to or from other professional privilege holders such as doctors, clergy, or members of parliament are specially protected. Generally, seizure is also impermissible if there is no suspicion of an enumerated offence, if evidence is not to be expected as a result, or if milder means are available. The measure must always be proportionate; disproportionate infringement of the secrecy of correspondence is inadmissible and can lead to a prohibition on the use of evidence.
What happens to seized mail?
Seized consignments are sealed and promptly brought to the ordering authority. Delivery to the original recipient is initially withheld. The court decides on the evaluation and further use. Frequently, mail is opened in the presence of witnesses, and the contents are recorded. If the contents are relevant as evidence, they are added to the proceedings as evidence; otherwise, they must be promptly returned or delivered to the rightful owner. If the seizure was unlawfully ordered, all information thus obtained is inadmissible, unless it pertains to incidental findings relating to serious criminal offences.
Is the affected person to be informed about the mail seizure?
As a rule, the affected person must be informed retrospectively about the seizure (Section 101 StPO). The notification should be made without delay, unless doing so would jeopardize the purpose of the investigation—for example, if further investigations would be compromised or covert surveillance is still ongoing. Once the original purpose of the investigation is fulfilled or no longer applies, notification must be provided subsequently. In the case of covert mail seizure, notification is required at the latest after the proceedings are concluded, unless legitimate interests of the state or third parties oppose this.
What legal remedies are available against a mail seizure?
Affected persons may lodge a complaint against the ordering of mail seizure pursuant to Section 304 StPO. Courts then particularly examine whether the legal requirements were met and whether the measure was proportionate. Review of seized mail or its release may also be requested by court application. If seizure was ordered or executed unlawfully, affected persons may also be entitled to claims for damages and injunctive relief. Furthermore, an application for a judicial decision on the legality of the inspection associated with the seizure may be made. Subsequently, it is also possible to have the admissibility of the evidence obtained in this manner reviewed in the criminal proceedings.
Is electronic mail also covered by mail seizure?
Traditionally, mail seizure refers to letters and parcels in the sense of the Postal Act. Electronic communications—such as emails or other digital messages—fall under the regulations on telecommunications surveillance (Sections 100a et seq. StPO) and not directly under the provisions for mail seizure. However, in practice the areas of application may overlap, especially when emails are already printed out or sent on data storage devices. In these cases, depending on the method of transmission, the secrecy of correspondence may also be affected. As a rule, however, access to electronic mail remains subject to special procedural requirements and is not permitted without a judicial order.
