Summary:

I.
In his constitutional complaint, the applicant claimed a violation of his right to informational self-determination pursuant to Article 2.1 in conjunction with Article 1.1 of the Basic Law. He challenged an order to collect cell tissue from him and to subject it to a molecular and genetic examination in order to establish identity in future criminal proceedings.

In February 2012, the Hamburg Regional Court convicted the applicant of the handling of stolen goods (§ 259.1 of the Criminal Code) and sentenced him to a prison sentence of one year and five months. The sentence was suspended and the applicant was granted probation pursuant to § 56.1 and § 56.2 of the Criminal Code.

Because of this conviction, the Hamburg Local Court ordered, based on § 81g of the Code, to collect cell tissue from the applicant and to subject it to a molecular and genetic examination. The Court justified this measure with the following arguments: Even though the applicant had no prior convictions, the amount and value of the stolen goods indicated that he suffered from a severe distortion of his personality. This made it likely that there would be future investigations against him on suspicion of having committed a criminal offence of substantial significance. It was to be expected that committing such a crime would lead to evidence that contained cell tissue. The Hamburg Regional Court dismissed the applicant’s complaint against this order as unfounded.

II.

The Third Chamber of the Second Senate of the Federal Constitutional Court accepted the constitutional complaint for decision and found it admissible and well-founded.

This decision was based on the following considerations: This decision was based on the following considerations:

The establishment, storing, and (future) use of a DNA profile interferes with the fundamental right to informational self-determination guaranteed by Article 2.1 in conjunction with Article 1.1 of the Basic Law. This right grants the power that individuals may generally decide for themselves when and within which limits to disclose aspects of their personal lives – a power that follows from the idea of self-determination. This guarantee may only be limited in the overriding interest of the public, provided that the limitation complies with the principle of proportionality, and that it is based on a law; the limitation may not be wider than is absolutely necessary in order to protect public interests. When interpreting and applying § 81g of the Code, the court must adequately consider the meaning and scope of this fundamental right.

It is necessary for the imposition of a measure pursuant to § 81g of the Code that because of the nature of the prosecuted offence or the way it was committed, the personality of the convicted offender, or because of other information, that there are reasons to assume that criminal proceedings will be conducted against him in the future because of a criminal offence of substantial significance. This prognosis-based decision requires that it was preceded by a sufficient clarification of the facts and that the relevant aspects are balanced comprehensively. To do this, it is necessary to give affirmative reasons that relate to the specific case at hand; the mere repetition of the legal text is not sufficient. It is necessary that the facts which the court considers are comprehensively laid out in the reasoning of the decision.

The challenged decisions did not meet these constitutional requirements. In particular, the courts did not include all circumstances that were relevant for the necessary balancing act, or did not state them sufficiently. The Federal Constitutional Court thus reversed the decisions of the Hamburg Local Court and the Hamburg Regional Court and remitted the case to the Hamburg Local Court.