When foreign lawyers hear the phrase “Beweisverwertungsverbot” — the exclusion of unlawfully obtained evidence — they might assume it functions like its counterpart in U.S. law, with strict rules and predictable consequences. But in Germany, the situation is more complex. The exclusionary rule exists, yes — but it is neither automatic nor uniform across different areas of law. Its application is nuanced, contextual, and shaped by a delicate balancing of interests.
In this article, we’ll unpack how German law treats unlawfully obtained evidence, highlighting the different approaches in criminal law, labor law, and civil law. Through examples drawn from actual cases, you’ll see that exclusion is often the exception rather than the rule — especially in criminal proceedings.
A Fragmented Landscape: No Universal Rule
Unlike some jurisdictions where exclusion follows a formal logic, German law does not have a single statutory rule that universally governs the admissibility of unlawfully obtained evidence. Instead, the doctrine has evolved through case law and is filtered through principles like proportionality, legal clarity, and the balancing of interests. Courts typically examine:
- How the evidence was obtained (illegality vs. procedural error),
- The severity of the rights violation,
- The nature of the case (private vs. public interests),
- The purpose of the exclusion (deterrence, fairness, etc.).
This leads to varying outcomes in different branches of law.
1. Criminal Law: Narrow Path to Exclusion
German criminal law theoretically permits exclusion of unlawfully obtained evidence — but in practice, courts are highly cautious. There is a tendency to prioritize the state’s interest in prosecution, especially when dealing with serious crimes. The Federal Court of Justice (BGH) has repeatedly ruled that only “gross” procedural violations or constitutional infringements justify exclusion.
Take, for example, your blog’s discussion of spontaneous statements made by suspects without being informed of their right to silence. While such evidence may appear tainted, courts often admit it if it was not intentionally elicited by authorities or if it occurred in an ambiguous situation (e.g., casual remark during a house search). The guiding idea is: unless police deliberately bypassed fundamental rights, the statement stands.
Similarly, in cases involving covert audio surveillance, like a secretly recorded conversation between a suspect and their partner, courts assess not only the privacy infringement but also weigh it against the public interest in solving a crime. A regional court in Bavaria, for instance, admitted such evidence, arguing that the need for effective prosecution outweighed the privacy intrusion — despite the apparent violation of § 201 StGB (protection of the spoken word).
The jurisprudence becomes even more tangled in the context of blood samples taken without judicial authorization. Although the Federal Constitutional Court requires a judicial order under § 81a StPO (Criminal Procedure Code), many courts admit the evidence anyway, especially when a police officer acted “in good faith” due to urgency or practical necessity.
Thus, in criminal law, exclusion is the exception, not the rule — and the burden to prove a violation’s weight lies heavily on the defense.
2. Labor Law: Stronger Protection for Employees
By contrast, labor law tends to afford individuals — especially employees — more robust protection. Here, courts are more willing to exclude evidence when employers overreach, particularly in surveillance scenarios.
A compelling example arises from cases involving secret video surveillance of employees. The Federal Labor Court (BAG) has repeatedly emphasized that covert monitoring without sufficient suspicion and a clear legal basis violates the employee’s right to privacy under the German Constitution (Art. 2 I GG in conjunction with Art. 1 I GG).
In one such case, an employer had installed a hidden camera in the break room, suspecting theft. The surveillance lasted several weeks without notifying the workers. Although the footage eventually revealed an employee stealing from the cash register, the court ruled the evidence inadmissible. The key rationale? The employer could have used milder, more targeted means and failed to respect proportionality.
Labor courts apply a strict proportionality test — requiring a concrete suspicion of wrongdoing and that surveillance be the last resort. Without that, evidence is thrown out, even if it is factually damning.
This protection reflects a deeper principle: the asymmetry of power between employers and employees demands stricter scrutiny of employer conduct.
3. Civil Law: A Balancing Exercise
In civil law, particularly in disputes between private parties, courts adopt a balancing approach. There is no automatic exclusion of evidence obtained unlawfully, especially when it concerns relevant facts that are otherwise difficult to establish.
One illustrative example from your writing involves the use of dashcam footage in traffic accident cases. Although continuous video recording may breach data protection norms (under the GDPR and German privacy statutes), several courts have ruled such footage admissible — citing the superior interest in establishing the truth and ensuring fair compensation.
This is not to say anything goes. If one party blatantly violates the other’s privacy or breaches trust (e.g., secretly recording conversations), courts may strike the evidence out. But they weigh the evidentiary value against the severity of the violation. Thus, exclusion is not automatic, but the result of a measured judicial evaluation.
Final Thoughts: No Silver Bullet
The German concept of Beweisverwertungsverbot resists simplification. It is not a mechanical rule but a contextual doctrine, shaped by constitutional values and evolving jurisprudence. While exclusion is possible in every legal field, the thresholds differ:
- In criminal law, exclusion is rare and requires serious violations.
- In labor law, courts are more protective and often exclude overreaching employer evidence.
- In civil law, judges balance fairness and privacy, often erring on the side of truth-finding.
Foreign observers should not assume that unlawfully obtained evidence is automatically discarded in Germany. Rather, they must understand the legal culture of balancing interests, a hallmark of German jurisprudence that prizes proportionality over dogma.
Our law firm specialises in criminal defence, white-collar crime and IT law / technology law. Note our activity in digital evidence in IT security and software law.
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