Criminal Law

Prosecutor prevented from seizing data in Gustl Mollath case

The case of Gustl Mollath’s alleged false imprisonment has been well publicised in Germany. To maintain a high profile, Mollath’s defence lawyer published documents concerning the case on his law firm’s website. State prosecutors have been prohibited from seizing the law firm’s server.

Prosecutor prevented from seizing data in Gustl Mollath case ©-Thomas-Jansa-Fotolia

Prosecutor prevented from seizing data in Gustl Mollath case ©-Thomas-Jansa-Fotolia

Gustl Mollath’s defence lawyer

Gustl Mollath’s case has seen widespread publicity throughout Germany. It concerns alleged false imprisonment by the German authorities.

As Mollath’s defence lawyer was keen to keep the case in the lime light, he published a number of official documents on his law firm’s website. They included Augsburg state prosecutor’s original application to stay criminal proceedings against Mollath and Regensburg state prosecutor’s later application to reopen the case. The documents were published without the relevant names being blacked out.

State prosecutors of Hamburg, who are leading the investigations, believe that such actions contravene § 353d(3) of Germany’s Criminal Code (Strafgesetzbuch, StGB).

This paragraph prohibits the publication of court documents or other official documents before the court hearing has taken place or before the case is closed.

As part of their investigations, the Hamburg state prosecutors sought a warrant to seize Mollath’s defence lawyer’s server. The warrant was refused in the lower courts (Az.: 166 Gs 377/13) and the appeal has now been rejected (629 Qs 34/13).

Secure evidence

In the first instance, the state prosecutors attempted to rely on § 94 of the German Criminal Procedure rules, arguing that the server should be seized in order to secure evidence.

The court rejected this argument on the basis that the publication of documents had already been proven and therefore there was no need to “secure evidence”.


The Hamburg state prosecutors secondly argued that confiscation of the server was justified under § 74 StGB.

This paragraph allows state prosecutors to seize a defendant’s effects which are suspected of having been used in the commission of a crime. They can be confiscated provided they belonged to the defendant at the time; or if they endanger society in general; or if there is a risk that they will be used to commit further crimes.

The court rejected this argument. It held that the server did not “belong” to Mollath’s defence lawyer, as it was the property of web host Strato AG.

Further, the court found that there was no risk of the server being used for the commission of further crimes or that it endangered the general public.

You can find a copy of the full judgment here.

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Christian Solmecke is a partner at the law firm WILDE BEUGER SOLMECKE. He is the author of numerous legal publications in the area of internet and IT law. He is also an associate lecturer for social media law at the Cologne University of Applied Sciences.

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