Unsuccessful constitutional complaint challenging electronic monitoring of persons released from prison (‘electronic tagging’)

Press Release No. 14/2021 of 04 February 2021

Order of 1 December 2020
2 BvR 916/11, 2 BvR 636/12

In an order published today, the Second Senate of the Federal Constitutional Court held that the statutory provisions on the electronic monitoring of persons released from prison (‘electronic tagging’) – § 68b(1) first sentence no. 12 and § 68b(1) third sentence of the Criminal Code (Strafgesetzbuch – StGB) in conjunction with § 463a(4) of the Code of Criminal Procedure (Strafprozessordnung – StPO) – are compatible with the Basic Law.

While such electronic monitoring constitutes a very intrusive interference with fundamental rights, in particular with the fundamental right to informational self-determination and the general right of personality following from Art. 2(1) in conjunction with Art. 1(1) of the Basic Law (Grundgesetz – GG), this interference is reasonable (zumutbar) and is not disproportionate in relation to the weight of the legal interests electronic monitoring serves to protect.

Facts of the case:

Electronic monitoring was introduced by the Act Reorganising the Law on Preventive Detention and Enacting Provisions Related Thereto (Gesetz zur Neuordnung des Rechts der Sicherungsverwahrung und zu begleitenden Regelungen) of 22 December 2010, which entered into force on 1 January 2011, following the Judgment of the European Court of Human Rights of 17 December 2009, M. v. Germany, no. 19359/04. In this judgment, the European Court of Human Rights held that continued preventive detention after expiry of the maximum period of ten years applicable at the time of conviction violated Convention rights. As a result of the judgment, persons at high risk of recidivism were released from prison and placed under police surveillance, sometimes around the clock. According to legislative intent, electronic monitoring was to replace such surveillance measures. The whereabouts of the persons concerned were to be determined by GPS. For that purpose, an electronic tag had to be attached to the ankle of the persons concerned.

Electronic monitoring was inserted as measure no. 12 into the catalogue of directions, set out in § 68b(1) first sentence StGB, that can be issued by a court in the context of the supervision of conduct of offenders. Pursuant to § 68b(1) third and fourth sentence StGB, such a measure can essentially be imposed if supervision of conduct was ordered following a prison sentence of at least three years that has been served in full, or a custodial measure of prevention and correction imposed or ordered because the person concerned had committed an offence of the type listed in § 66(3) first sentence StGB, and if there is a risk that the convicted person will commit further qualified criminal offences. Moreover, imposing the measure must appear necessary to prevent the convicted person from committing further qualified criminal offences. Qualified criminal offences include, in particular, offences against life, physical integrity, personal liberty or sexual self-determination as well as offences against public order. The data stored in the context of electronic monitoring by the authority supervising the convicted person’s conduct may only be used without that person’s consent if this is necessary for the purposes specified in § 463a StPO. These purposes include, in particular, the punishment of a breach of a court-ordered direction, the averting of a considerable present danger to weighty legal interests and the prosecution of a qualified criminal offence.

The complainants were released from prison after having served long sentences and were initially placed under police surveillance. In the context of the supervision of their conduct, the criminal courts ordered electronic monitoring of the complainants, who were then made to wear electronic ankle tags.

In particular, the complainants claim a violation of Art. 1(1) GG and Art. 2(1) in conjunction with Art. 1(1) GG, both in its manifestation as the right to informational self-determination and in its manifestation as the requirement to seek the social reintegration of offenders (Resozialisierungsgebot). In addition, they assert a violation of Art. 12 GG, Art. 11 GG and Art. 2(2) second sentence GG as well as of Art. 103(2) GG and of the general principle of the protection of legitimate expectations; finally, they also claim a violation of Art. 19(1) second sentence GG.

Key considerations of the Senate:

The constitutional complaints are admissible but unfounded.

1. The possibility to determine, based on specific grounds, the whereabouts of a person subject to court-ordered directions pursuant to § 68b(1) first sentence no. 12 and § 68b(1) third sentence StGB in conjunction with § 463a(4) StPO does not violate the complainants’ fundamental rights or equivalent rights.

a) The challenged provisions do not interfere with the guarantee of human dignity under Art. 1(1) GG.

They merely aim to enable the competent authority to determine the whereabouts of the persons concerned at any time if this is required by specific grounds. Electronic monitoring does not subject the persons concerned to optical or acoustic surveillance, and thus does not cover the activities undertaken by them. Moreover, the legislator prohibited the exact tracking of persons concerned within their home and limited the data to be collected to a determination of their whereabouts. Yet the mere determination of someone’s whereabouts by means of GPS tracking does generally not encroach on the inviolable core of private life, which is beyond the reach of any monitoring by the state.

Likewise, the electronic determination of someone’s whereabouts does not result in “sweeping surveillance” that would be incompatible with human dignity and turn the persons concerned into mere objects of state action. The data is collected automatically and only provides information on the whereabouts of the persons concerned. While the data required to this end is collected permanently, it only concerns those whereabouts. The level of surveillance arising from electronic monitoring is not so comprehensive as to cover almost all movements and expressions, nor does it allow for the compilation of personality profiles.

b) The challenged provisions also do not violate the complainants’ general right of personality following from Art. 2(1) in conjunction with Art. 1(1) GG. In particular, the provisions are proportionate.

aa) Electronic monitoring amounts to a very intrusive interference with fundamental rights, reaching deep into the private sphere of persons subject to court-ordered directions and impairing their autonomy to freely shape their life and develop their individuality, as guaranteed by the right to the free development of one’s personality and by human dignity. Such measures are only compatible with the Constitution if they serve to protect or defend sufficiently weighty legal interests and if there are factual indications, in the individual case, suggesting that these interests are violated or at risk of being violated.

The statutory framework set out in § 68b(1) first sentence no. 12 and § 68b(1) third sentence StGB satisfies these constitutional requirements. The very intrusive interference with fundamental rights is reasonable in view of the weight of the protected interests and is, in particular, not disproportionate to the weight of the legal interests electronic monitoring serves to protect. Electronic monitoring is subject to considerable restrictions both with regard to the group of persons subject to such a court-ordered direction and with regard to the seriousness of the criminal offences to be expected. Moreover, such a measure may only be imposed if there is a sufficiently specific danger that the person concerned will commit further serious criminal offences of the type listed in § 66(3) first sentence StGB.

bb) The provisions do not violate the general right of personality in its manifestation as the requirement to seek the social reintegration of offenders.

The electronic ankle tags that the persons concerned have to wear do not make it significantly more difficult for them to live an independent life or to be reintegrated into society. The electronic ankle tag is not readily noticeable in everyday social interactions, and the transmitter, which is attached by means of an ankle strap, can be concealed by normal clothing without any great difficulty. In any case, the persons concerned are not “visibly branded” and it is not impossible for them to conceal an electronic ankle tag, including in closer social relationships. It is for the most part up to the persons concerned to determine to what extent others obtain knowledge of their electronic ankle tag. In light of this, such a tag does not have a general “stigmatising effect”, as claimed in the constitutional complaints. It is true that the measure amounts to a more serious interference with the life of the persons concerned with regard to intimate contacts, for instance because persons concerned might be unwilling to have such contacts out of shame. However, in this respect, too, the restrictions of general freedom of action are justified to protect the high-ranking legal interests of the life, liberty, physical integrity and sexual self-determination of others.

cc) Nor do the challenged provisions violate the complainants’ general right of personality under Art. 2(1) in conjunction with Art. 1(1) GG in its manifestation as the right to informational self-determination.

In the context of electronic monitoring, data on the persons concerned that falls within the scope of protection of the right to informational self-determination is continuously collected. However, the collection and processing of this data is set out in § 463a(4) StPO in a manner that satisfies the constitutional requirements regarding the collection and use of personal data.

The rules on the use of this data set out in § 463a(4) StPO are also proportionate. Electronic monitoring may only be ordered if there is a reasonable likelihood that serious criminal offences pursuant to § 66(3) first sentence StGB will be committed. The collected data must be especially protected against unauthorised access. Moreover, the interference with the right to informational self-determination is limited by the fact that the data must be deleted no later than two months after its collection insofar as it is not used (§ 463a(4) fifth sentence StPO) and access to and deletion of the data must be documented (§ 463a(4) eighth sentence StPO). In light of this, the possibility of using the collected data to monitor compliance with the direction to wear the electronic ankle tag, to punish non-compliance with court-ordered directions and to avert dangers to public security must be considered appropriate.

c) The challenged provisions also do not violate the right to physical integrity (Art. 2(2) first sentence GG) given that there are not sufficient indications that properly attaching and wearing the electronic ankle tag is harmful to health or results in physical pain or something comparable. In any case, such effects would at most amount to minor interferences with the right to physical integrity, and would be justified.

d) The provisions do not interfere with occupational freedom under Art. 12 GG because they do not objectively have inherent regulatory effects on occupations (objektiv berufsregelnde Tendenz). Electronic monitoring does not entail any prohibitions regarding the choosing of one’s occupation or place of training. It also does not affect the practice of an occupation to such an extent that it would justify the assumption that it objectively has inherent regulatory effects on occupations. In any case, an interference would be justified under the principle of proportionality in its strict sense in view of the group targeted by the measure – dangerous criminal offenders at risk of recidivism – which is strictly limited by § 68b(1) first sentence no. 12 StGB.

e) The provisions on electronic monitoring are also in accordance with the protection of legitimate expectations required under the rule of law (Art. 2(1) in conjunction with Art. 20(3) GG).

It is true that the provisions also govern cases with a retroactive link of statutory prerequisites (so-called quasi retroactivity, unechte Rückwirkung), whereby the legislator bases future legal consequences on circumstances that occurred before the provisions were enacted. Yet it is not objectionable under constitutional law that the legislator, in a balancing of interests, gives precedence to the security interests of the general public over the expectation of the persons concerned that they can lead a life not adversely affected by state measures.

f) The provisions also do not interfere with the other fundamental rights invoked by the complainants: Art. 2(2) second sentence GG, the fundamental right to free movement under Art. 11(1) GG, the fundamental right to the inviolability of the home under Art. 13(1) GG and the prohibition of retroactivity under Art. 103(2) GG. Nor do the provisions violate the requirement to expressly specify affected fundamental rights (Zitiergebot) under Art. 19(1) second sentence GG.

2. The provisions do not raise concerns with regard to the European Convention on Human Rights. It is not ascertainable from the case-law of the European Court of Human Rights that electronic monitoring violates the right to respect for private life under Art. 8 of the Convention or the principle of non-retroactivity under Art. 7 of the Convention.

3. The interpretation and application of the statutory provisions on electronic monitoring by the criminal courts is not objectionable under constitutional law and does not violate the complainants’ fundamental rights.