In the case of Uzun v. Germany,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
Peer Lorenzen, President,
Renate Jaeger,
Karel Jungwiert,
Mark Villiger,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Ganna Yudkivska, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 29 June 2010,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
35623/05) against the Federal Republic of Germany lodged with the Court under
Article 34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a German national, Mr Bernhard Uzun (“the
applicant”), on 24 September 2005. The applicant, who had changed his surname
from Falk to Uzun during the proceedings before the domestic courts, readopted
his original family name Falk in 2009.
The applicant, who had been granted legal aid,
was represented by Mr . Comes, a lawyer practising in Cologne. The German
Government (“the Government”) were represented by their Agent, Mrs A.
Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of
Justice.
The applicant alleged that the surveillance measures
he had been subjected to, in particular his observation via GPS, and the use of
the data obtained thereby in the criminal proceedings against him, had violated
his right to respect for his private life under Article 8 of the Convention and
his right to a fair trial under Article 6 of the Convention.
On 21 April 2008 the President of the Fifth
Section decided to give notice of the application to the Government. It was also
decided to examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1967 and lives in Mönchengladbach.
A. Background to the case
In spring 1993 the North Rhine-Westphalia
Department for the Protection of the Constitution (Verfassungsschutz)
started a long-term observation of the applicant. The latter was suspected of
participation in offences committed by the so-called Anti-Imperialist Cell (Antiimperialistische
Zelle), an organisation which was pursuing the armed combat abandoned since
1992 by the Red Army Fraction (Rote Armee Fraktion), a left-wing
extremist terrorist movement.
As a consequence, the applicant was occasionally
kept under visual surveillance by staff members of the Department for the
Protection of the Constitution and the entries to his flats were filmed by
video cameras. The Department also intercepted the telephones in the house in
which the applicant lived with his mother (from 26 April 1993 to 4 April 1996)
and in a telephone box situated nearby (from 11 January 1995 until 25 February
1996). Moreover, post addressed to him was opened and checked (from 29 April
1993 to 29 March 1996).
Likewise, S., a presumed accomplice of the
applicant, was subjected to surveillance measures from 1993. The Hamburg Office
for the Protection of the Constitution intercepted telecommunications from the
phone in his parents' house as well as his post. Moreover, staff members of the
Office occasionally observed him.
In October 1995 the Federal Public Prosecutor
General instituted investigatory proceedings against the applicant and S. for
participation in bomb attacks for which the Anti-Imperialist Cell had claimed
responsibility. The Federal Office for Criminal Investigations was in charge of
the investigations.
Following this, the applicant and S. were kept
under visual surveillance by civil servants of the Federal Office for Criminal
Investigation, essentially during the weekends between 30 September 1995 and
their arrest on 25 February 1996. Moreover, the entry of the house in which the
applicant was living with his mother was observed by means of an additional
video camera installed by the Federal Office for Criminal Investigations (from
October 1995 to February 1996). The telephones in that house, in a telephone
box situated nearby and in S.'s flat in Hamburg were tapped by order of the
investigating judge at the Federal Court of Justice (13 October 1995 to 27 February
1996). That judge further ordered observation by the police of the applicant
and S. as well as of the cars used by them. The Federal Office for Criminal
Investigations also observed the entry of S.'s apartment by means of video
cameras (October 1995 to February 1996). Moreover, it intercepted the
professional radio communication used by S.
In October 1995 the Federal Office for Criminal
Investigations further installed two transmitters (Peilsender) in S.'s
car, which the applicant and S. often used together. However, the applicant and
S. detected and destroyed the transmitters. As they suspected that their
telecommunications were being intercepted and that they were being observed,
they never spoke to each other on the phone and succeeded on many occasions in
evading visual surveillance by the investigation authorities.
In view of this, the Federal Office for Criminal
Investigation built a Global Positioning System (GPS) receiver into S.'s car in
December 1995 by order of the Federal Public Prosecutor General. Thereby it
could determine the location and the speed of the car once per minute. However,
the data were only recovered every other day in order to prevent detection of
the receiver. This observation lasted until the applicant's and S.'s arrest on
25 February 1996.
GPS is a radio navigation system working with
the help of satellites. It allows the continuous location, without lapse of
time, of objects equipped with a GPS receiver anywhere on earth, with a maximum
tolerance of 50 metres at the time. It does not comprise any visual or
acoustical surveillance. As opposed to transmitters, its use does not
necessitate the knowledge of where approximately the person to be located can
be found.
B. The proceedings before the Düsseldorf Court of
Appeal
In the criminal trial opened against the
applicant and S., the Düsseldorf Court of Appeal, by a decision of 12 December
1997, dismissed the applicant's objection to the use as evidence of the results
obtained by his surveillance with the help of GPS. It found that Article 100c §
1 no. 1 (b) of the Code of Criminal Procedure (see paragraph 29 below)
authorised the use of GPS in the instant case. The reliable information thus
collected could therefore be used at trial. This information was confirmed by
the evidence obtained by the - legal - video and personal surveillance of the
defendants. Moreover, contrary to the applicant's submission, the use of GPS did
not require a court order because it had been aggregated with other, legal,
methods of surveillance. According to the Code of Criminal Procedure,
surveillance via GPS did not have to be ordered by a judge, as opposed to
measures interfering more profoundly with the right to self-determination in
the sphere of information (Recht auf informationelle
Selbstbestimmung). Whether or not a surveillance measure could be
ordered in addition to measures already in place was a question of
proportionality of the additional measure in question.
On 1 September 1999 the Düsseldorf Court of
Appeal convicted the applicant, inter alia, of attempted murder and of
four counts of causing an explosion and sentenced him to thirteen years'
imprisonment. It found that the applicant and S., who had been the only members
of the so-called Anti-Imperialist Cell since spring 1995, had placed
bombs in front of the houses of members or former members of Parliament and in
front of the Peruvian Honorary Consulate between January and December 1995.
The Court of Appeal noted that the applicant had
availed himself of his right to remain silent when faced with the charges and
that S. had admitted taking part in the bomb attacks only in general terms,
without giving any details. However, circumstantial evidence obtained in the
course of the surveillance measures taken against them proved that they had
committed the offences of which they had been found guilty.
In particular, the Court of Appeal found that
for the bomb attack carried out following the GPS surveillance of S.'s car, it
had been shown that the car had been parked close to the scene of the crime on
the day the offence was committed and on a few days prior to it. Moreover, the
car had been located close to the places where the defendants had photocopied,
hidden and later posted letters claiming responsibility for the offence and
close to sites in forests where the investigating authorities later found
hiding places with material necessary for the construction of the bomb. This
evidence was corroborated by information obtained by other methods of
surveillance, in particular, the video surveillance of the entry of the
applicant's home and the visual surveillance of the defendants by staff of the
Federal Office for Criminal Investigations. The defendants' participation in
the bomb attacks prior to their surveillance with the help of the GPS was
proved by the similar execution of the offences as well as the information
obtained by the video surveillance of their homes and the interception of
telecommunications.
C. The proceedings before the Federal Court of Justice
In an appeal on points of law the applicant
complained, in particular, about the use as evidence at trial of the
information obtained by his allegedly illegal surveillance notably with the
help of GPS.
By a judgment of 24 January 2001 the Federal
Court of Justice dismissed the applicant's appeal on points of law as
ill-founded. It found that the collection of data by GPS had a legal basis,
namely Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure. Therefore,
the information obtained in this manner could be used in the criminal
proceedings against the applicant.
In particular, the use of technical locating
devices such as the GPS did not interfere with the applicant's home. As the
applicant was suspected of offences of considerable gravity, namely
participation in bomb attacks committed by a terrorist organisation, the use of
GPS was a proportionate interference with his right to respect for his private
life (as protected also by Article 8 of the Convention) and his right to
self-determination in the sphere of information. Other methods of investigation
would have had less prospect of success, as the applicant and S. had often
succeeded in evading other measures of observation.
Endorsing the reasons given by the Court of
Appeal, the Federal Court of Justice further found that the aggregation of
several measures of investigation did not necessitate an additional legal basis
or make a court order necessary. However, the investigating authorities had to
examine whether ordering another measure of surveillance in addition to the
measures which were already being taken was still proportionate. In any event,
there had not been a total surveillance of the applicant, which alone could
violate the principle of proportionality and a person's right to privacy and
could raise the issue of exclusion of evidence obtained in this manner from
criminal proceedings.
The Federal Court of Justice conceded that
following a change in the law in the year 2000, Article 163f § 4 of the Code of Criminal Procedure (see paragraph
32 below) provided that any long-term observation lasting for more than one
month had to be ordered by a judge, irrespective of whether or not technical
means of surveillance were used. The need for a court order did not, however,
previously emanate from the Code of Criminal Procedure, constitutional law or
Article 8 of the Convention.
D. The proceedings before the Federal Constitutional
Court
The applicant subsequently lodged a complaint
with the Federal Constitutional Court. He claimed, in particular, that his
surveillance by the North Rhine-Westphalia and Hamburg Offices for the
Protection of the Constitution and by the Federal Office for Criminal
Investigations from October 1995 until February 1996 and the judgments of the
Court of Appeal and the Federal Court of Justice had infringed his right to
privacy. Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure
could not be considered a sufficiently precise legal basis for his surveillance
with the help of GPS. There was no effective judicial control of this measure
and the use of several means of surveillance at the same time would have
necessitated a separate basis in law. Moreover, the use at trial of the
information obtained by the said measures without a basis in law had infringed
his right to a fair hearing.
On 12 April 2005 the Federal Constitutional
Court, having held a hearing, dismissed the applicant's constitutional
complaint (file no. 2 BvR 581/01). It found that his complaint was
ill-founded in so far as he had complained about the use in the proceedings of
evidence obtained by his observation via GPS in addition to other surveillance
measures and that these measures were illegal.
The surveillance of the applicant with the help
of GPS could be based on Article 100c § 1 no. 1 (b) of the Code of Criminal
Procedure. That provision was constitutional. In particular, the term “special
technical means intended for the purpose of surveillance” was sufficiently
precise. As opposed to visual or acoustic surveillance, it comprised the
location and determination of the whereabouts of a person by observing him or
her by technical means such as GPS. The legislator was not obliged to formulate
the methods of surveillance in a manner excluding the use of new forensic
techniques. However, there was a risk of infringement of the right to self-determination
in the sphere of information, that is, the right of the
individual to determine the use of data on him or her. Therefore, the
legislator had to observe technical progress and, if necessary, safeguard the
respect of fundamental rights by the investigating authorities with additional
legislative provisions.
Moreover, the measure did not disproportionately
interfere with the applicant's right to privacy. His surveillance did not
destroy the essence of his private life. On the contrary, such surveillance by
technical means could in some cases make more serious interferences, such as
the interception of communications, unnecessary. Therefore, it was not
disproportionate to order the surveillance measure if there was only an initial
suspicion of an offence (of considerable gravity) and if other methods of
investigation had less prospect of success. Furthermore, the legislator had not
been obliged to set up additional safeguards for long-term surveillance - which
he later did by adopting Article 163f § 4 of the Code of Criminal Procedure -
but could first observe the factual developments in this field.
Neither did the legislator have the duty to
regulate the use of several surveillance measures at once. Full surveillance of
a person by which an exhaustive personal profile could be drawn up would be
unconstitutional, but could, as a rule, be prevented by the existing procedural
safeguards. However, the Public Prosecutor's Office, when ordering a
surveillance measure, had to make sure by proper documentation in the case file
and federal registers that it was aware of all other surveillance measures
taken against the person concerned at the same time. Furthermore, the
legislator had to observe whether, in view of future developments, the existing
procedural safeguards were sufficient to grant an effective protection of
fundamental rights and to prevent uncoordinated investigation measures by
different authorities.
In the instant case, the interference with the
applicant's rights by his surveillance by GPS was proportionate, notably in
view of the gravity of the offences he had been suspected of and the fact that
he had evaded other measures of surveillance. The use of several observation
measures at the same time had not led to total surveillance. He had been
observed with the help of GPS only when he had travelled in S.'s car. Other
surveillance measures had basically been used only at weekends and had
consisted only to a minor extent of the interception of communications.
II. RELEVANT DOMESTIC LAW
Article 100c § 1 no. 1 was inserted into the
Code of Criminal Procedure by the Act on the fight against drug trafficking and
other forms of organised crime (Gesetz zur Bekämpfung des illegalen
Rauschgifthandels und anderer Erscheinungsformen der organisierten Kriminalität)
of 15 July 1992. The relevant parts of Article 100c of the Code of Criminal
Procedure, in its version in force at the relevant time, provided:
“(1) Without the knowledge of the person concerned
no. 1
a) photographs may be taken and visual recordings be
made,
b) other special technical means intended for the
purpose of surveillance may be used to investigate the facts of the case or to
detect the perpetrator's whereabouts if the investigation concerns a criminal
offence of considerable gravity and
if other means of investigating the facts of the case or of
detecting the perpetrator's whereabouts had less prospect of success or were
more difficult,
no. 2
private speech may be listened to and recorded using technical
means ...
(2) Measures pursuant to paragraph 1 may only be
taken against the accused. ... Measures pursuant to paragraph 1 no. 1 (b) ...
may be ordered against third persons only if it can be assumed, on the basis of
specific facts, that they are in contact with or will contact the perpetrator
and that the measure will make it possible to establish the facts or to
determine the perpetrator's whereabouts and if other means would offer no
prospect of success or would be considerably more difficult.”
Pursuant to Article 100d § 1 of the Code of
Criminal Procedure, in its version in force at the relevant time - just as for
an order to tap a person's telephone (Article 100b § 1 of the Code of Criminal
Procedure) - a court order was necessary to authorise the use of technical
devices to bug and to record conversations made in private under Article 100c §
1 no. 2 of the Code of Criminal Procedure. However, that Article did not
prescribe a court order for measures of investigation taken under Article 100c
§ 1 no. 1.
Pursuant to Article 101 § 1 of the Code of
Criminal Procedure, the person concerned by a measure under Article 100c § 1
no. 1 (b) of that Code shall be notified of the measure taken as soon as this
is possible without endangering the purpose of the investigations, public
safety, life and limb of another person or the possible further use of an
undercover agent involved in the measure.
On 1 November 2000 Article 163f of the Code of
Criminal Procedure, on long-term systematic surveillance of suspects, entered
into force. Pursuant to paragraph 1 of that Article, such surveillance lasting
for more than twenty-four hours non-stop or applied on more than two days,
could only be ordered in respect of persons suspected of an offence of
considerable gravity and if other means of investigating the facts of the case
or the suspect's whereabouts had considerably less prospect of success or were
considerably more difficult. The measure was to be ordered by the Public
Prosecutor's Office (paragraph 3). Pursuant to paragraph 4, the measure had to
be restricted to a maximum of one month; any further extension could only be
ordered by a judge.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
The applicant complained that his observation
via GPS and its aggregation with several further measures of surveillance, as
well as the use of the data obtained thereby in the criminal proceedings
against him, had breached his right to respect for his private life as provided
in Article 8 of the Convention, which, in so far as relevant, reads as follows:
“1. Everyone has the right to respect for his
private ... life ...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the prevention
of disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others.”
The Government contested that argument.
A. Admissibility
1. The parties' submissions
a. The Government
The Government considered that the applicant had
not fully exhausted domestic remedies as required by Article 35 of the
Convention. In the proceedings before the domestic courts, he had failed to
complain about his visual observation as such, which alone had established a
link between himself and the data obtained by the GPS surveillance in that it
had disclosed his presence in S.'s car. Moreover, the applicant had not contested
the lawfulness of all surveillance measures other than the GPS surveillance, in
particular the interception of his telecommunications, before the domestic
courts.
The Government further took the view that the
applicant could not claim to be the victim of a breach of his right to respect
for his private life for the purposes of Article 34 of the Convention. They
argued that the GPS surveillance of the car of his accomplice S. had not
directly concerned him in person.
b. The applicant
The applicant contested that view. He argued, in
particular, that he had exhausted domestic remedies. He underlined that he had
complained both before the domestic courts and before this Court about his
surveillance via GPS, which had been applied in addition to further
surveillance methods used at the same time, and had objected to the use of
evidence obtained as a result of his surveillance via GPS and not only to the
use of the GPS data as such. Furthermore, he had also complained throughout the
proceedings that he was under total surveillance by an accumulation of
different measures of surveillance in addition to the use of GPS. This was
confirmed by the reasoning of the decisions of the domestic courts, which had
addressed- and rejected - his arguments in this respect.
2. The Court's assessment
The Court notes, as regards the scope of the
case before it, that the applicant complained under Article 8 about his
observation via GPS. He argued that this measure, taken alone, was in breach of
his right to respect for his private life and that in any event it breached
Article 8 because of its aggregation with several further measures of
surveillance. He further complained about the use of the data collected thereby
in the criminal proceedings against him. The applicant did not contest
the lawfulness of any of the additional surveillance measures other than the
GPS surveillance. The Court observes that the applicant brought his complaint
as defined above before the Düsseldorf Court of Appeal, the Federal Court of
Justice and the Federal Constitutional Court, which all addressed and rejected
it on the merits (see paragraphs 14, 18-22 and 23-28 respectively). Consequently,
the Government's objection of non-exhaustion of domestic remedies must be
dismissed.
As to the question whether the applicant may
claim to be the victim of a breach of his right to respect for his private life
for the purposes of Article 34 of the Convention in view of the fact that it was
not himself, but his accomplice's car which had been subjected to surveillance
via GPS, the Court considers that this issue is closely linked to the substance
of his complaint under Article 8. It therefore joins the preliminary objection
raised by the Government in this respect to the merits of the case.
The Court further notes that this complaint is
not manifestly ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. Whether there was an interference with private life
a. The parties' submissions
In the applicant's view, his total surveillance via
GPS had interfered with his right to respect for his private life. Even though
the GPS receiver had been built into an object (S.'s car), it had been used to
observe his (and S.'s) movements. It had enabled the investigating authorities
to draw up a comprehensive pattern of his movements in public for months, by
means of a measure which was very precise and difficult to detect. All his
movements had been made known to third persons without his consent. The
information gathered by the GPS surveillance had enabled the authorities to
initiate further investigations, inter alia, at the places he had
travelled to.
The Government took the view that there had not
been an interference with the applicant's right to respect for his private life
under Article 8 by the surveillance via GPS. This surveillance had not directly
concerned the applicant in person as the GPS receiver had been built into the
car of his accomplice S. and as the data collected had only revealed where the
receiver had found itself at a particular time and not who had been travelling
in S.'s car.
b. The Court's assessment
i. Recapitulation of the relevant principles
The Court reiterates that private life is a
broad term not susceptible to exhaustive definition. Article 8 protects, inter
alia, a right to identity and personal development, and the right to
establish and develop relationships with other human beings and the outside
world. There is, therefore, a zone of interaction of a person with others, even
in a public context, which may fall within the scope of “private life” (see P.G.
and J.H. v. the United Kingdom, no. 44787/98, § 56, ECHR 2001-IX; Peck
v. the United Kingdom, no. 44647/98, § 57, ECHR 2003-I; and Perry
v. the United Kingdom, no. 63737/00, § 36, ECHR 2003-IX
(extracts)).
There are a number of elements relevant to a
consideration of whether a person's private life is concerned by measures
effected outside a person's home or private premises. Since there are occasions
when people knowingly or intentionally involve themselves in activities which
are or may be recorded or reported in a public manner, a person's reasonable
expectations as to privacy may be a significant, although not necessarily
conclusive, factor (see Perry, cited above, § 37). A person walking
along the street will inevitably be visible to any member of the public who is
also present. Monitoring by technological means of the same public scene (for
example, a security guard viewing through closed-circuit television) is of a
similar character (see also Herbecq and the Association “Ligue des droits de
l'homme” v. Belgium, nos. 32200/96 and 32201/96, Commission decision of 14
January 1998, Decisions and Reports (DR) 92-B, p. 92, concerning the use of
photographic equipment which does not involve the recording of the visual data
obtained). Private-life considerations may arise, however, once any systematic
or permanent record comes into existence of such material from the public
domain (see P.G. and J.H. v. the United Kingdom, cited above, § 57; Peck,
cited above, §§ 58-59; and Perry, cited above, § 38).
Further elements which the Court has taken into
account in this respect include the question whether there has been compilation
of data on a particular individual, whether there has been processing or use of
personal data or whether there has been publication of the material concerned
in a manner or degree beyond that normally foreseeable.
Thus, the Court has considered that the systematic
collection and storing of data by security services on particular individuals,
even without the use of covert surveillance methods, constituted an
interference with these persons' private lives (see Rotaru v. Romania [GC],
no. 28341/95, §§ 43-44, ECHR 2000-V; P.G. and J.H. v. the United
Kingdom, cited above, § 57; Peck, cited above, § 59; and Perry,
cited above, § 38; compare also Amann v. Switzerland [GC], no.
27798/95, §§ 65-67, ECHR 2000-II, where the storing of information about the
applicant on a card in a file was found to be an interference with private
life, even though it contained no sensitive information and had probably never
been consulted). The Court has also referred in this context to the Council of
Europe's Convention of 28 January 1981 for the protection of individuals
with regard to automatic processing of personal data, which came into force - inter
alia for Germany - on 1 October 1985 and whose purpose is “to secure
in the territory of each Party for every individual ... respect for his rights
and fundamental freedoms, and in particular his right to privacy, with regard
to automatic processing of personal data relating to him” (Article 1), such
data being defined as “any information relating to an identified or
identifiable individual” (Article 2) (see P.G. and J.H. v. the United
Kingdom, cited above, § 57).
The Court has further taken into consideration whether
the impugned measure amounted to a processing or use of personal data of a
nature to constitute an interference with respect for private life (see, in
particular, Perry, cited above, §§ 40-41). Thus, it considered, for
instance, the permanent recording of footage deliberately taken of the
applicant at a police station by a security camera and its use in a video
identification procedure as the processing of personal data about the applicant
interfering with his right to respect for private life (ibid., §§ 39-43).
Likewise, the covert and permanent recording of the applicants' voices at a
police station for further analysis as voice samples directly relevant for
identifying these persons in the context of other personal data was regarded as
the processing of personal data about them amounting to an interference with
their private lives (see P.G. and J.H. v. the United Kingdom, cited
above, §§ 59-60; and Perry, cited above, § 38).
Finally, the publication of material obtained in
public places in a manner or degree beyond that normally foreseeable may also
bring recorded data or material within the scope of Article 8 § 1 (see Peck,
cited above, §§ 60-63, concerning disclosure to the media for broadcast
use of video footage of the applicant taken in a public place; and Perry,
cited above, § 38).
ii. Application of these principles to the present
case
In determining whether the surveillance via GPS carried
out by the investigation authorities interfered with the applicant's right to
respect for his private life, the Court, having regard to the above principles,
will determine first whether this measure constituted a compilation of data on
the applicant. It notes the Government's argument that this was not the case,
given that the GPS receiver had been built into an object (a car) belonging to
a third person (the applicant's accomplice). However, in doing so, the
investigating authorities clearly intended to obtain information on the
movements of both the applicant and his accomplice as they had been aware from
their previous investigations that both suspects had been using S.'s car
together on the weekends of previous bomb attacks (see paragraphs 11 and 17
above; see also, mutatis mutandis, Lambert v. France, 24 August
1998, § 21, Reports of Judgments and Decisions 1998-V, where
it was considered irrelevant to the finding of an interference with the
applicant's private life that the telephone tapping in question had been
carried out on the line of a third party).
Moreover, the fact that the applicant must, just
as S. was, be considered to have been the subject of the surveillance by GPS,
is not in question, because information on the movements of S.'s car could only
be linked to the applicant by additional visual surveillance to confirm his
presence in that car. Indeed, none of the domestic courts expressed any doubts
that the applicant had been subjected to surveillance via GPS (see, in
particular, paragraphs 14, 17, 20 and 26 above).
The Court further notes that by the surveillance
of the applicant via GPS, the investigation authorities, for some three months,
systematically collected and stored data determining, in the circumstances, the
applicant's whereabouts and movements in the public sphere. They further
recorded the personal data and used it in order to draw up a pattern of the
applicant's movements, to make further investigations and to collect additional
evidence at the places the applicant had travelled to, which was later used at
the criminal trial against the applicant (see paragraph 17 above).
In the Court's view, GPS surveillance is by its
very nature to be distinguished from other methods of visual or acoustical
surveillance which are, as a rule, more susceptible of interfering with a
person's right to respect for private life, because they disclose more information
on a person's conduct, opinions or feelings. Having regard to the principles
established in its case-law, it nevertheless finds the above-mentioned factors
sufficient to conclude that the applicant's observation via GPS, in the
circumstances, and the processing and use of the data obtained thereby in the
manner described above amounted to an interference with his private life as
protected by Article 8 § 1.
Consequently, the Government's preliminary
objection that the applicant may not claim to be the victim of a breach of his
right to respect for his private life for the purposes of Article 34 of the
Convention must equally be dismissed.
2. Whether the interference was justified
a. Was the interference “in accordance with the law”?
i. The parties' submissions
α. The applicant
The applicant argued that the said interference
had not been justified under Article 8 § 2. Article 100c § 1 no. 1 (b) of the
Code of Criminal Procedure had not been a sufficient legal basis for the
interference. That provision had not been meant by the legislator to cover
measures of surveillance unknown at the time of its adoption. Moreover, the
term “other special technical means intended for the purpose of surveillance”
contained in the said Article was not sufficiently clear and, having regard to
possible technical developments in the future, its content was not foreseeable
for the persons possibly concerned. This had implicitly been confirmed by the Federal
Constitutional Court which had found that there was a risk of infringements
of fundamental rights by the use of new forensic techniques and that the
legislator had to safeguard the respect of those rights, if necessary, by
additional legislative provisions (see paragraph 25 above).
Moreover, the applicant submitted that the legal
provisions on the basis of which GPS surveillance had been ordered had not
satisfied the qualitative requirements developed in the Court's case-law on
secret measures of surveillance (he refers, in particular, to the case of Weber
and Saravia v. Germany (dec.), no. 54934/00, ECHR 2006-XI and to that
of Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria,
no. 62540/00, 28 June 2007). In particular, there was no statutory limit on the
duration of such surveillance. Furthermore, in view of the intensity of the
interference, authorising the prosecution, as opposed to the investigating
judge, to order that surveillance had not offered sufficient protection against
arbitrariness.
The applicant further took the view that the use
of numerous further surveillance measures in addition to GPS surveillance had
led to his total surveillance by the State authorities and had violated his
rights under Article 8 in that the law did not contain sufficient
safeguards against abuse, in particular because no order by an independent
tribunal had been necessary to authorise and supervise the surveillance
measures in their entirety. A subsequent judicial review of the surveillance
measures alone had not afforded sufficient protection to the persons concerned.
It was carried out only if criminal proceedings were instituted at all
following such a measure and if by that measure the prosecution had obtained
evidence which it intended to use at the trial. Article 163f of the Code of
Criminal Procedure (see paragraph 32 above) had not been in force at the
relevant time and, in any event, did itself not contain sufficient safeguards against
abuse.
β. The Government
The Government argued that, even assuming that
the surveillance of the applicant via GPS was considered an interference with
the applicant's right to respect for his private life, that interference had
been justified under paragraph 2 of Article 8. It had been based on Article
100c § 1 no. 1 (b) of the Code of Criminal Procedure, a legal provision which
met the necessary qualitative requirements, in particular that of
foreseeability. They took the view that the principles developed in the Court's
case-law on the law's foreseeability in the context of cases concerning the
interception of telecommunications could not be transferred to the present case
concerning the surveillance via GPS as the latter interfered to a much lesser
extent with the private life of the person concerned than telephone tapping. As
had been confirmed by the domestic courts, it had been sufficiently clear that
the term “other special technical means intended for the purpose of surveillance”
under Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure,
whereby the legislator intended to authorise the use of future surveillance
techniques, covered a surveillance via GPS.
Moreover, the Government submitted that the
legal provisions at issue contained sufficient safeguards against arbitrary
interference by the authorities with the citizens' rights. Surveillance by
technical means such as GPS had only been authorised under Article 100c § 1 no.
1 (b) of the Code of Criminal Procedure if the investigation concerned a
criminal offence of considerable gravity. Under Article 100c § 2 of the Code of
Criminal Procedure (see paragraph 29 above), such a measure could, as a rule,
only be ordered against persons charged with a criminal offence. Under the
legal provisions in force at the relevant time, the Public Prosecutor's Office
had been authorised to issue a surveillance order. It had not been necessary to
confer that power on a judge. In any event, there was a judicial review of the
measures at issue in the subsequent criminal proceedings. Moreover, as the
domestic courts had convincingly found, a court order for the surveillance via
GPS had not been necessary in view of the fact that that measure had been used
in addition to several further measures of surveillance.
Furthermore, the Government underlined that the
person concerned by the surveillance measure had to be informed thereof as soon
as this was possible without endangering the purpose of the investigations
(Article 101 § 1 of the Code of Criminal Procedure, see paragraph 31 above).
Moreover, the principle of proportionality had been respected in that under
Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure, the
surveillance methods in question had only been authorised if other means of
investigation had less prospect of success or were more difficult. The duration
of a measure of surveillance via GPS also had to be proportionate.
ii. The Court's assessment
α. Relevant principles
Under the Court's case-law, the expression “in
accordance with the law” within the meaning of Article 8 § 2 requires, firstly,
that the measure should have some basis in domestic law; it also refers to the
quality of the law in question, requiring it to be accessible to the person
concerned, who must, moreover, be able to foresee its consequences for him, and
compatible with the rule of law (see, among other authorities, Kruslin v.
France, 24 April 1990, § 27, Series A no. 176-A; Lambert,
cited above, § 23; and Perry, cited above, § 45).
As to the requirement of legal “foreseeability”
in this field, the Court reiterates that in the context of covert measures of
surveillance, the law must be sufficiently clear in its terms to give citizens
an adequate indication of the conditions and circumstances in which the
authorities are empowered to resort to any such measures (see, among other
authorities, Malone v. the United Kingdom, 2 August 1984, §
67, Series A no. 82; Valenzuela Contreras v. Spain, 30 July 1998, § 46
(iii), Reports 1998-V; and Bykov v. Russia [GC], no. 4378/02, § 76, ECHR 2009-...). In view of the risk
of abuse intrinsic to any system of secret surveillance, such measures must be
based on a law that is particularly precise, especially as the technology
available for use is continually becoming more sophisticated (see Weber and
Saravia v. Germany (dec.), no. 54934/00, § 93, ECHR 2006-XI; Association
for European Integration and Human Rights and Ekimdzhiev v. Bulgaria,
no. 62540/00, § 75, 28 June 2007; Liberty and Others v. the United
Kingdom, no. 58243/00, § 62, 1 July 2008; and Iordachi and Others v. Moldova, no. 25198/02, § 39, 10 February 2009).
The Court has further stated, in the context of
Article 7 of the Convention, that in any system of law, including criminal law,
however clearly drafted a legal provision may be, there is an inevitable
element of judicial interpretation. There will always be a need for elucidation
of doubtful points and for adaptation to changing circumstances. Indeed, in the
Convention States, the progressive development of the criminal law through
judicial law-making is a well entrenched and necessary part of legal tradition.
The Convention cannot be read as outlawing the gradual clarification of the
rules of criminal liability through judicial interpretation from case to case,
provided that the resultant development is consistent with the essence of the
offence and could reasonably be foreseen (see, inter alia, S.W. v.
the United Kingdom, 22 November 1995, § 36, Series A no. 335-B; and Streletz,
Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 50,
ECHR 2001-II). The Court considers that these principles, developed under
Article 7, apply also in the present context.
In addition, in the context of secret measures
of surveillance by public authorities, because of the lack of public scrutiny
and the risk of misuse of power, compatibility with the rule of law requires
that domestic law provides adequate protection against arbitrary interference
with Article 8 rights (see, mutatis mutandis, Amann, cited
above, §§ 76-77; Bykov, cited above, § 76; see
also Weber and Saravia (dec.), cited above, § 94; and Liberty
and Others, cited above, § 62). The Court must be satisfied that there
exist adequate and effective guarantees against abuse. This assessment depends
on all the circumstances of the case, such as the nature, scope and duration of
the possible measures, the grounds required for ordering them, the authorities
competent to permit, carry out and supervise them, and the kind of remedy
provided by the national law (see Association for European Integration and
Human Rights and Ekimdzhiev, cited above, § 77, with reference to Klass
and Others v. Germany, 6 September 1978, § 50, Series A no. 28).
β. Application of those principles to the
present case
The Court, examining whether the interference
with the applicant's right to respect for his private life by his surveillance
via GPS was “in accordance with the law” within the meaning of Article 8 § 2,
considers that this interference had a basis in German statute law, Article
100c § 1 no. 1 (b) of the Code of Criminal Procedure, a provision
which was accessible to the applicant.
As to the law's foreseeability and its
compliance with the rule of law, the Court notes at the outset that in his
submissions, the applicant strongly relied on the minimum safeguards which are
to be set out in statute law in order to avoid abuses as developed by the Court
in the context of applications concerning the interception of
telecommunications. According to these principles, the nature of the offences
which may give rise to an interception order; a definition of the categories of
people liable to have their communications monitored; a limit on the duration
of such monitoring; the procedure to be followed for examining, using and
storing the data obtained; the precautions to be taken when communicating the
data to other parties; and the circumstances in which data obtained may or must
be erased or the records destroyed, have to be defined in statute law (see Weber
and Saravia, cited above, § 95, with further references).
While the Court is not barred from gaining
inspiration from these principles, it finds that these rather strict standards,
set up and applied in the specific context of surveillance of
telecommunications (see also Association for European Integration and Human
Rights and Ekimdzhiev, cited above, § 76; Liberty and Others,
cited above, § 62; and Iordachi and Others, cited above,
§ 39), are not applicable as such to cases such as the present one,
concerning surveillance via GPS of movements in public places and thus a
measure which must be considered to interfere less with the private life of the
person concerned than the interception of his or her telephone conversations
(see paragraph 52 above). It will therefore apply the more general principles
on adequate protection against arbitrary interference with Article 8 rights as
summarised above (see paragraph 63).
In determining whether the provisions on the
applicant's surveillance via GPS complied with the requirement of “foreseeability”,
the Court notes the applicant's argument that the term “other special technical
means intended for the purpose of surveillance” contained in Article 100c § 1 no. 1 (b)
of the Code of Criminal Procedure was not sufficiently clear and could not be
said to cover surveillance via GPS. On the contrary, the domestic courts, which
are primarily called upon to interpret and apply domestic law (see, among many
other authorities, Kopp v. Switzerland, 25 March 1998, § 59, Reports
1998-II), were unanimous in their finding that the said Article
covered surveillance by such means (see paragraphs 14, 19 and 25 above).
The Court considers that it was clear from the
wording of Article 100c § 1 no. 1 (b), read in the context of Article 100c
§ 1 no. 1 (a) and no. 2, that the technical means at issue covered methods of
surveillance which were neither visual nor acoustical and were used, in
particular, “to detect the perpetrator's whereabouts”. As the use of GPS does
not constitute either visual or acoustical surveillance and allows the location
of objects equipped with a GPS receiver and thus of persons travelling with or
in those objects, the Court finds that the domestic courts' finding that such
surveillance was covered by Article 100c § 1 no. 1 (b) was a reasonably
foreseeable development and clarification of the said provision of the Code of
Criminal Procedure by judicial interpretation.
In examining whether domestic law contained adequate
and effective guarantees against abuse, the Court observes that in its nature
conducting surveillance of a person by building a GPS receiver into the car he
or she uses, coupled with visual surveillance of that person, permits the
authorities to track that person's movements in public places whenever he or
she is travelling in that car. It is true that, as the applicant had objected,
there was no fixed statutory limit on the duration of such monitoring. A fixed
time-limit had only subsequently been enacted in so far as under the new
Article 163f § 4 of the Code of Criminal Procedure, the systematic
surveillance of a suspect ordered by a Public Prosecutor could not exceed one
month, and any further extension could only be ordered by a judge (see
paragraph 32 above). However, the Court is satisfied that the duration of such
a surveillance measure was subject to its proportionality in the circumstances
and that the domestic courts reviewed the respect of the proportionality
principle in this respect (see for an example paragraph 28 above). It finds
that German law therefore provided sufficient guarantees against abuse on that
account.
As to the grounds required for ordering a person's
surveillance via GPS, the Court notes that under Article 100c § 1 no. 1 (b), §
2 of the Code of Criminal Procedure, such surveillance could only be ordered
against a person suspected of a criminal offence of considerable gravity or, in
very limited circumstances, against a third person suspected of being in
contact with the accused, and if other means of detecting the whereabouts of
the accused had less prospect of success or were more difficult. It finds that
domestic law thus set quite strict standards for authorising the surveillance
measure at issue.
The Court further observes that under domestic
law the prosecution was able to order a suspect's surveillance via GPS, which
was carried out by the police. It notes that in the applicant's submission,
only conferring the power to order GPS surveillance on an investigating judge
would have offered sufficient protection against arbitrariness. The Court
observes that pursuant to Article 163f § 4 of the Code of Criminal Procedure,
which entered into force after the applicant's surveillance via GPS had been
carried out, systematic surveillance of a suspect for a period exceeding one
month did indeed have to be ordered by a judge. It welcomes this reinforcement
of the protection of the right of a suspect to respect for his private life. It
notes, however, that already, under the provisions in force at the relevant
time, surveillance of a subject via GPS has not been removed from judicial
control. In subsequent criminal proceedings against the person concerned, the
criminal courts could review the legality of such a measure of surveillance
and, in the event that the measure was found to be unlawful, had discretion to
exclude the evidence obtained thereby from use at the trial (such a review was
also carried out in the present case, see, in particular, paragraphs 14, 19 and
21 above).
The Court considers that such judicial review
and the possibility to exclude evidence obtained from an illegal GPS
surveillance constituted an important safeguard, as it discouraged the
investigating authorities from collecting evidence by unlawful means. In view
of the fact that GPS surveillance must be considered to interfere less with a
person's private life than, for instance, telephone tapping (an order for which
has to be made by an independent body both under domestic law (see Article 100b
§ 1 of the Code of Criminal Procedure, paragraph 30 above) and under Article 8
of the Convention (see, in particular, Dumitru
Popescu v. Romania (no. 2), no. 71525/01, §§ 70-71, 26 April 2007, and
Iordachi and Others, cited above, § 40), the
Court finds subsequent judicial review of a person's surveillance by GPS to
offer sufficient protection against arbitrariness. Moreover, Article 101 § 1 of
the Code of Criminal Procedure contained a further safeguard against abuse in
that it ordered that the person concerned be informed of the surveillance
measure he or she had been subjected to under certain circumstances (see
paragraph 31 above).
The Court finally does not overlook that under
the Code of Criminal Procedure, it was not necessary for a court to authorise
and supervise surveillance via GPS which was carried out in addition to other
means of surveillance and thus all surveillance measures in their entirety. It
takes the view that sufficient safeguards against abuse require, in particular,
that uncoordinated investigation measures taken by different authorities must
be prevented and that, therefore, the prosecution, prior to ordering a suspect's
surveillance via GPS, had to make sure that it was aware of further
surveillance measures already in place. However, having also regard to the
findings of the Federal Constitutional Court on this issue (see paragraph 27
above), it finds that at the relevant time the safeguards in place to prevent a
person's total surveillance, including the principle of proportionality, were
sufficient to prevent abuse.
In view of the foregoing, the Court considers
that the interference with the applicant's right to respect for his private
life was “in accordance with the law” within the meaning of Article 8 § 2.
b. Purpose and necessity of the interference
i. The parties' submissions
The applicant considered that the interference
at issue had not been necessary in a democratic society within the meaning of
Article 8 § 2 because, as set out above (see paragraphs 54-56), the applicable
law failed to protect him sufficiently against arbitrary interference by State
authorities.
In the Government's view, the surveillance
measure at issue had pursued legitimate aims as it had served the interests of
national security, public safety, the prevention of crime and the protection of
the rights of others. The measure had also been necessary in a democratic
society. As set out above, there had been effective guarantees against abuse.
It was true that the legislator, by adopting Article 163f § 4 of the Code of
Criminal Procedure, had subsequently further strengthened the rights of the persons
concerned in that it had made the surveillance measure subject to a judicial
order and a time-limit. This did not, however, warrant the conclusion that the
measure had not previously met the minimum standards set by the Convention. The
applicant's surveillance via GPS for some two and a half months could not be
considered disproportionate. Likewise, the accumulation of different methods of
surveillance had not rendered the interference with the applicant's rights
disproportionate. The visual surveillance, in particular, had been carried out
almost exclusively at weekends and the gravity of the offence the applicant had
been suspected of and the danger to the public had justified his surveillance
in that manner.
ii. The Court's assessment
The applicant's surveillance via GPS, ordered by
the Federal Public Prosecutor General in order to investigate into several
counts of attempted murder for which a terrorist movement had claimed
responsibility and to prevent further bomb attacks, served the interests of
national security and public safety, the prevention of crime and the protection
of the rights of the victims.
In determining whether the applicant's surveillance
via GPS as carried out in the present case was “necessary in a democratic
society”, the Court reiterates that the notion of necessity implies that the
interference corresponds to a pressing social need and, in particular, that it
is proportionate to the legitimate aim pursued (see Leander v. Sweden,
26 March 1987, § 58, Series A no. 116; and Messina v. Italy (no.
2), no. 25498/94, § 65, ECHR 2000-X). In examining whether, in
the light of the case as a whole, the measure taken was proportionate to the
legitimate aims pursued, the Court notes that the applicant's surveillance via
GPS was not ordered from the outset. The investigation authorities had first
attempted to determine whether the applicant was involved in the bomb attacks
at issue by measures which interfered less with his right to respect for his
private life. They had notably tried to determine the applicant's whereabouts
by installing transmitters in S.'s car, the use of which (other than with the
GPS) necessitated the knowledge of where approximately the person to be located
could be found. However, the applicant and his accomplice had detected and
destroyed the transmitters and had also successfully evaded their visual
surveillance by State agents on many occasions. Therefore, it is clear that
other methods of investigation, which were less intrusive than the applicant's
surveillance by GPS, had proved to be less effective.
The Court further observes that in the present
case, the applicant's surveillance by GPS was added to a multitude of further
previously ordered, partly overlapping measures of observation. These comprised
the applicant's visual surveillance by both members of the North Rhine-Westphalia
Department for the Protection of the Constitution and by civil servants of the
Federal Office for Criminal Investigations. It further included the video
surveillance of the entry of the house he lived in and the interception of the
telephones in that house and in a telephone box situated nearby by both of the
said authorities separately. Moreover, the North Rhine-Westphalia Department
for the Protection of the Constitution intercepted his postal communications at
the relevant time.
The Court considers that in these circumstances,
the applicant's surveillance via GPS had led to a quite extensive observation
of his conduct by two different State authorities. In particular, the fact that
the applicant had been subjected to the same surveillance measures by different
authorities had led to a more serious interference with his private life, in
that the number of persons to whom information on his conduct had become known
had been increased. Against this background, the interference by the applicant's
additional surveillance via GPS thus necessitated more compelling reasons if it
was to be justified. However, the GPS surveillance was carried out for a
relatively short period of time (some three months), and, as with his visual
surveillance by State agents, affected him essentially only at weekends and when
he was travelling in S.'s car. Therefore, he cannot be said to have been
subjected to total and comprehensive surveillance. Moreover, the investigation for
which the surveillance was put in place concerned very serious crimes, namely
several attempted murders of politicians and civil servants by bomb attacks. As
shown above, the investigation into these offences and notably the prevention
of further similar acts by the use of less intrusive methods of surveillance
had previously not proved successful. Therefore, the Court considers that the
applicant's surveillance via GPS, as carried out in the circumstances of the
present case, was proportionate to the legitimate aims pursued and thus
“necessary in a democratic society” within the meaning of Article 8 § 2.
There has accordingly been no violation of
Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION
The applicant further claimed that the use in
the criminal proceedings of information obtained by his surveillance in breach
of Article 8, which had been the essential basis for his conviction, had infringed
his right to a fair trial. He relied on Article 6 § 1 of the Convention which,
in so far as relevant, provides:
“In the determination of ... any criminal charge against him,
everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
The Government contested that argument.
A. Admissibility
The Court notes that this complaint is linked to
the one examined above and must therefore likewise be declared admissible.
B. Merits
Having regard to its above finding that the applicant's
surveillance via GPS has not breached Article 8 of the Convention, the Court
considers that the use of information and evidence obtained thereby in the
criminal proceedings against the applicant does not, in the circumstances of
the present case, raise a separate issue under Article 6 § 1 of the Convention.
FOR THESE REASONS, THE COURT
UNANIMOUSLY
1. Joins to the merits the Government's
preliminary objection that the applicant cannot claim to be the victim of a
breach of his rights under Article 8 and dismisses it;
2. Declares the application admissible;
3. Holds that there has been no violation of
Article 8 of the Convention;
4. Holds that no separate issue arises under
Article 6 § 1 of the Convention.
Done in English and French, and
notified in writing on 2 September 2010, pursuant to Rule 77 §§ 2 and 3 of the
Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
