Federal Constitutional Court - Press office -
Press release no. 27/2008 of 11 March 2008
Judgment of 11 March 2008 – 1 BvR 2074/05; 1 BvR 1254/07 –
Statutory regulations in Hesse and Schleswig-Holstein on automatic
number plate recognition void
The constitutional complaints lodged by several registered holders of
motor vehicles against provisions under police law in the Länder
(states) Hesse and Schleswig-Holstein which authorise automatic
recognition of the official vehicle number plates were successful.
Facts of the case:
The challenged provisions authorise automatic number plate recognition
on public roads and squares for the purpose of electronically matching
the number plates against tracing files.
First, the vehicles are optically recognised by a camera. With the help
of software, the sequence of letters and characters of the number plate
is ascertained. Then the number plates are automatically matched
against tracing files. When a number plate is contained in the tracing
files, the relevant information will be retained. The measure is
intended to serve the search for vehicles or number plates that have
been reported as stolen or are being traced for other reasons.
The complainants are registered holders of vehicles that they regularly
use for travel on public roads of the respective Land (state). They
perceive their fundamental right to informational self-determination
under Article 2.1 of the Basic Law (Grundgesetz - GG) in conjunction
with Article 1.1 GG as violated.
In its judgment of 11 March 2008, the First Senate of the Federal
Constitutional Court declared the challenged provisions void as they
violate the complainants' general right of personality in its
manifestation as the fundamental right to informational
self-determination.
The provisions do not comply with the precept of determinedness and
clarity of legal provisions because they neither determine the cause
nor the purpose of investigation which both the recognition and the
matching of the data are intended to serve. Over and above this, the
challenged provisions, in their undefined scope, also do not comply
with the constitutional precept of proportionality. They make severe
interference with the affected parties' right to informational
self-determination possible without sufficiently codifying the
statutory thresholds which fundamental rights demand for measures that
constitute such intense interference.
In essence, the decision is based on the following considerations:
I. Automatic number plate recognition interferes with the scope of
protection of the fundamental right to informational
self-determination if the number plates are not promptly matched
against the tracing files and deleted without further evaluation.
1. The protection of the fundamental right is not eliminated just
because the relevant information is publicly accessible - which
is even prescribed by statute for vehicle number plates that
serve to identify the vehicle. Even if individuals enter public
places, the right to informational self-determination protects
their interest in ensuring that the related personal
information will not be recorded in the course of an automatic
collection of information for the purpose of retaining such
personal information with the possibility of further use.
2. There is no interference with the scope of protection of the
right to informational self-determination in instances of
electronic number plate recognition if matching against the
tracing files is performed promptly and its result is negative.
Additionally, it must be legally and technically ensured that
the data remains anonymous and is immediately, and untraceably,
deleted without the possibility of drawing a connection to the
person whose data is recognised. In such cases, data
recognition does not constitute an act of endangerment.
3. An interference with the fundamental right exists, however,
where number plates that have been recognised are retained in
storage and where they can become the basis for further
measures. This is, above all, the focus of the measure if a
number plate is discovered in the tracing files. From this
point, it is at the disposal of governmental entities for
evaluation, and the specific risk to the owner's personality as
regards his or her behavioural freedom and privacy begins.
II. Interference with the fundamental right to informational
self-determination must have a statutory basis that is
constitutional. The challenged provisions do not meet this
requirement.
1. The constitutional requirements placed on the basis for the
authorisation depend on the gravity of the interference, which
is especially influenced by the nature of the collected
information, the cause and the circumstances of collection, the
affected groups and the way in which the data will possibly be
used.
Especially depending on the context of in which it is used,
automatic number plate recognition to be reviewed here can lead
to fundamental rights restrictions of differing magnitudes.
Comparably little relevance to the personality of those
affected is exhibited by measures where the sole purpose of
such data recognition is to locate stolen vehicles and
"apprehend" their respective drivers, especially in order to
avoid subsequent offences, or to prevent drivers without
sufficient insurance cover from continuing their journey. The
fundamental-rights relevance of the measure changes if
automatic number plate recognition serves, by contrast, to use
the collected information for additional purposes, for instance
to obtain information about the driver's travel patterns or
other information about particular journeys that bears
relevance to the driver's personality. Interference of
considerable significance is possible especially through
performance of long-term or large-area number plate
recognition.
2. The provisions contravene the precept of determinedness and
clarity of legal provisions.
a) An adequate designation of the cause and the purpose of use
of automatic data recognition that is sufficiently
area-specific and clear is missing.
The challenged provisions allow the recognition of number
plates "for the purpose" of matching them against tracing
files. This, however, neither determines the cause nor the
purpose of investigation which both recognition and matching
are ultimately intended to serve. The use of the terms
"tracing files" (Fahndungsbestand) and "search notice"
(Fahndungsnotierung) does not serve to specify the scope of
application of the authorisation. These terms have the
nature of a dynamic reference, which, in particular, does
not rule out that the extent of the data stocks involved
will change continually and in a manner which is not
foreseeable at present.
The legal provisions forming the basis of the authorisation
are so vaguely drafted that it cannot be ruled out that also
alerts for police surveillance could be regarded as a
component of tracing files so that police surveillance
measures could be carried out with the aid of automatic
number plate recognition. This makes a systematic,
geographically expansive collection of information about
vehicle travel patterns and, subsequently, of people,
technically possible with relatively low effort. The
interference thus acquires a different quality with
increased intensity, requiring a commensurate authorisation
for interference.
The ban on the area-wide use of automatic number plate
recognition under the law of the Land Schleswig-Holstein
only results in a certain limitation of the possible extent
of number plate recognition. However, it precludes neither a
routine, non-incident-related recognition of number plates
nor its targeted use to observe specific vehicles.
Due to the association of the measure to the tracing files,
with the simultaneous vagueness of its purpose of use, it
cannot be inferred from the provisions under Land law
whether number plate recognition may also be employed for
prosecutorial purposes, which include making provision for
the prosecution of criminal offences prior to suspicion.
Even if it is probably possible to eliminate some of the
deficiencies as to determinedness by means of
interpretation, the shortcomings, especially the lack of
determinedness of the purpose of use, cannot be remedied by
a restrictive interpretation in conformity with the
constitution. Such an interpretation assumes indications
that the more narrowly drafted purpose shall be the decisive
one. Evidence of this is missing here.
b) The lack of designation of the purpose of automatic number
plate data recognition coincides with an unconstitutional
lack of determinedness regarding collectable information.
Both regulations leave open whether, or, if appropriate,
which additional information beyond the order of, and
symbols on, the number plates may be collected. The
currently customary recognition of number plate data by
video necessarily goes along with a recognition of all
details recognisable from the image, as well as possibly of
details about the passengers of the vehicle, although the
provisions, if interpreted narrowly, allow the recognition
of number plate data alone. As the purpose of use of the
collected information is not regulated with sufficient
clarity and determinedness, the scope of collectable
information cannot be sufficiently limited by such an
interpretation, which makes reference to the designation of
the purpose of use.
3. In their undefined scope, the challenged provisions also do not
meet the constitutional precept of proportionality.
They make severe interference with the affected parties' right
to informational self-determination possible without
sufficiently codifying the statutory thresholds which
fundamental rights demand for measures that constitute such
intense interference. In particular, it is incompatible with
the principle of proportionality that the challenged
provisions, due to their unlimited scope, make it possible to
perform measures of automatic number plate recognition that are
non-incident-related or, in Hesse in any event, comprehensive.
Furthermore, the statutory authorisation makes the automatic
recognition and evaluation of vehicle number plates possible
without concrete danger situations or generally increased risks
of dangers to, or violations of, legally protected rights
providing a cause for the establishment of number plate
recognition. A limitation to spot checks, which would be
permissible for interference of merely lesser intensity, such
as the recognition of the number plates of stolen vehicles, has
also not been provided.
III. The Land legislatures have different options at their disposal to
develop an authorisation for interference which is sufficiently
specific and reasonable and keeps within their competence. For a
regulation that preserves the proportionality of the automatic
number plate recognition requirements, a broadly framed purpose of
use is, for example, not ruled out if it is combined with a strict
limitation of the conditions for interference, like those provided
in the regulation currently in force in the Land Brandenburg.
Furthermore, it is possible to combine more narrowly framed
designations of the purpose, which restrict number plate
recognition to purposes of use which do not constitute an
intensive interference, with correspondingly less restrictive
conditions for entry in the tracing files and for the cause of the
recognition of such data.
This press release is also available in the original german version.
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