Ne
ws

by Dr. Katharina Wild

In cases of tax evasion, the general prerequisites for intrusive measures under the Code of Criminal Procedure (StPO)—such as wiretapping, DNA sampling, and online searches—apply; there are no special rules specific to tax criminal law. The decisive factors in each case are: whether the offense falls within the statutory list of offenses (Katalogtat), the intensity of the intrusion, and the principle of proportionality.

I. Telecommunications Surveillance – Wiretapping

Telephone and internet surveillance is governed by Section 100a of the Code of Criminal Procedure (StPO) and constitutes a particularly significant intrusion into the privacy of telecommunications (Art. 10 of the Basic Law). It may only be ordered if:

• there is a suspicion, based on concrete facts, that an offense listed in the statute (Katalogtat) has been committed,
• the offense is "serious" in the specific case and investigating the facts would be substantially hindered or rendered futile without such surveillance,
• the measure is ordered by a judge and the strict procedural safeguards set out in Sections 100a, 100e, and 101 StPO are observed.

Tax evasion per se is not an offense listed in Section 100a (2) StPO. Telecommunications surveillance is therefore permissible only if the tax offense qualifies as "serious tax evasion" falling within the scope of a listed offense—specifically, when committed by a gang or on a commercial basis (e.g., continued gang-based tax evasion).

Telecommunications surveillance in tax evasion cases is typically considered in major proceedings (e.g., organized energy tax or tobacco tax evasion, or gang-based VAT carousel fraud); for "ordinary" income tax evasion, such surveillance is generally inadmissible or disproportionate.

II. Online Search

An online search pursuant to Section 100b of the Code of Criminal Procedure (StPO) constitutes an even more intensive encroachment upon the fundamental right to the integrity and confidentiality of IT systems (Art. 2 para. 1 in conjunction with Art. 1 para. 1 of the Basic Law) and covertly captures all data stored on an IT system. Consequently, particularly stringent requirements apply:

• suspicion of a predicate offense enumerated in Section 100b para. 2 StPO; these typically involve particularly serious forms of crime (terrorism, organized crime, etc.),
• strict principle of subsidiarity: an online search is permitted only if less intrusive measures (overt search, seizure) are insufficient,
• comprehensive procedural safeguards regarding the protection of the core area of ​​private life and data processing.

Tax evasion is generally not included in the list of predicate offenses under Section 100b StPO. Therefore, an online search solely on the grounds of tax evasion is not permissible.

In criminal tax proceedings, the securing of digital evidence is therefore typically carried out via overt searches and seizures pursuant to Sections 102 et seq. and 94 et seq. StPO (e.g., a search in connection with commercial VAT evasion, involving the seizure of accounting records and data storage media); in such cases, a qualified initial suspicion and adherence to the principle of proportionality suffice.

III. DNA Samples

The collection of body cells (e.g., via cheek swab) and molecular genetic analysis are governed by Sections 81a, 81e, and 81f of the Code of Criminal Procedure (StPO). They require:

• reasonable suspicion of a criminal offense,
• that DNA analysis is necessary to establish identity or prove the offense,
• a judicial order (except in cases of imminent danger).

DNA traces typically play a role in offenses involving physical contact, such as sexual offenses and acts of violence. In cases of tax evasion—an offense against property that leaves no physical traces—the necessity for DNA analysis is generally absent. Consequently, DNA-related measures in tax criminal law are conceivable only in exceptional cases—for instance, when other offenses involving crime-related DNA traces are committed concurrently.

IV. Proportionality and Protection of Fundamental Rights

All the aforementioned measures are subject to a strict standard of proportionality:

The degree of intrusion involved in covert telecommunications surveillance, online searches, and DNA analysis requires suspicion of serious to particularly grave offenses, as well as the absence of less intrusive yet equally effective means.

Particularly intrusive measures (such as surveillance of private living quarters or online searches) must respect the core sphere of private life and be terminated if necessary.

If you have questions, please contact us at: kanzlei@wild.legal