EHRM, 02-09-2010, nr. 35623/05

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.

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.

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).

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.