North Rhine-Westphalia Police Act – Observations
In an order published today, the First Senate of the Federal Constitutional Court held that § 16a(1) first sentence no. 2 and § 17(1) first sentence alternatives 1 and 2 no. 2 of the North Rhine-Westphalia Police Act (Polizeigesetz des Landes Nordrhein-Westfalen - PolG NRW) in combined application are incompatible with Art. 2(1) in conjunction with Art. 1(1) of the Basic Law (Grundgesetz - GG). The provisions will continue to apply, subject to the condition that measures based on these provisions may only be taken if there is at least an identifiable danger, until the legislator has enacted new provisions, or until 31 December 2025 at the latest.
§ 16a(1) first sentence no. 2 and § 17(1) first sentence alternatives 1 and 2 no. 2 of the North Rhine-Westphalia Police Act authorise police authorities to conduct long-term observations combined with the covert use of technical means to take and record images. During the course of such a measure initiated on 14 July 2015 against a targeted person, the complainant was also repeatedly observed and photographed. The complainant brought a legal challenge to this action before the administrative courts. The Federal Administrative Court suspended the appeal proceedings and referred to the Federal Constitutional Court the question whether § 16a(1) first sentence no. 2 in conjunction with the second sentence and § 17(1) first sentence alternative 1 no. 2 in conjunction with the second sentence of the North Rhine-Westphalia Police Act is compatible with the fundamental right to informational self-determination following from Art. 2(1) in conjunction with Art. 1(1) of the Basic Law.
§ 16a(1) first sentence no. 2 and § 17(1) first sentence variations 1 and 2 no. 2 of the North Rhine-Westphalia Police Act in combined application are incompatible with Art. 2(1) in conjunction with Art. 1(1) of the Basic Law, because an order of long-term observations combined with the taking and recording of images does not require a sufficiently strict and clear threshold for interference as grounds for the observations. A specific danger or at least an identifiable danger is required.
Facts of the case:
§ 16a(1) first sentence of the North Rhine-Westphalia Police Act authorises police authorities to collect personal data through scheduled surveillance either planned for or actually carried out continuously for more than 24 hours or on more than two days (long-term observations). In accordance with § 16a(1) first sentence no. 2 of the North Rhine-Westphalia Police Act, this requires that facts give rise to the assumption that certain persons intend to commit considerable criminal offences, and the collection of data is necessary for the prevention of these criminal offences. § 16a(1) second sentence of the North Rhine-Westphalia Police Act also permits the collection of personal data on other persons (third parties), insofar as this is necessary to be able to conduct a collection of personal data in accordance with the first sentence of that provision.
§ 17(1) first sentence of the North Rhine-Westphalia Police Act authorises police authorities to collect personal data inter alia through the covert use of technical means to take (alternative 1) and record (alternative 2) images. The preconditions provided for in § 17(1) first sentence of the North Rhine-Westphalia Police Act for an order for the covert use of technical means are the same as the preconditions for long-term observations.
In the initial proceedings, the complainant challenges a data collection that affected her as a third party, which was carried out during long-term observations initiated on 14 July 2015 in relation to a targeted person and involved the taking and recording of images.
This target person had been registered by police as a person posing a threat (politically motivated crimes - right wing) and had been convicted of, inter alia, murder (Totschlag), causing bodily harm by dangerous means (gefährliche Körperverletzung) and failure to render assistance in an emergency (unterlassene Hilfeleistung). In preparation for his release from detention after serving a prison sentence, the head of the police authority ordered on 10 July 2015 that his new place of residence be investigated for the duration of one month through long-term observations and the covert use of technical means to take and record images to prevent him from going underground and to prevent future severe acts of politically motivated violent crime. During the course of the measure initiated on 14 July 2015, the complainant was also observed and photographed several times.
With her complaint, the complainant seeks a declaration that the collection of her personal data is unlawful. The Federal Administrative Court suspended the appeal proceedings and referred to the Federal Constitutional Court the question whether § 16a(1) first sentence no. 2 in conjunction with the second sentence and § 17(1) first sentence alternative 1 no. 2 in conjunction with the second sentence of the North Rhine-Westphalia Police Act is compatible with the fundamental right to informational self-determination following from Art. 2(1) in conjunction with Art. 1(1) of the Basic Law.
Key considerations of the Senate:
§ 16a(1) first sentence no. 2 and § 17(1) first sentence alternatives 1 and 2 no. 2 of the North Rhine-Westphalia Police Act in combined application are incompatible with Art. 2(1) in conjunction with Art. 1(1) of the Basic Law, because an order of long-term observations combined with the taking and recording of images does not require a sufficiently strict and clear threshold for interference as grounds for the observations.
I. The referral must be limited to the constitutional review of the combined effect of both authorising provisions. The only relevant provision is the one directed against the responsible person, the potential unconstitutionality of which will also cover the measure taken vis-à-vis the complainant as a third party. When limited in this way and restricted to the parts of the provisions under review that are relevant to this decision, the referral is admissible.
II. The referral, which was limited to the use of technical means to take images, must be extended to the use of technical means to record images. According to the interpretation of the Federal Constitutional Court, the photographs involved do not amount to the capture of images in real time, but a recording of images through storage of the captured images.
III. § 16a(1) first sentence no. 2 and § 17(1) first sentence alternatives 1 and 2 no. 2 of the North Rhine-Westphalia Police Act are unconstitutional in their combined application.
1. Long-term observations for preventative purposes combined with the use of technical means to take and record images amount to a serious interference with the right to informational self-determination (Art. 2(1) in conjunction with Art. 1(1) of the Basic Law) as a manifestation of the general right of personality.
The weight of interference of measures permitted under §§ 16a, 17 of the North Rhine-Westphalia Police Act range from interferences of low and medium weight, such as the taking of individual photographs or simple observation for a limited period, to serious interferences such as long-term monitoring by means of covert audio and image recordings of a person. When these measures are combined and — through the use of modern technology — are aimed at registering and recording audio-visually as many statements and movements as possible, they can reach especially deep into the private sphere and thus constitute interferences of particularly great weight.
Within this spectrum, long-term observations combined with the use of technical means to take and record images always amount to a serious interference. However, the severity is reduced by the fact that the combination of long-term observations and the recording of images is not intended to capture and audio-visually record as many statements and movements as possible. This is due to the fact that observations only take place in public or publically accessible spaces (cf. § 41(4) of the North Rhine-Westphalia Police Act) and observations in places such as homes do not fall under § 16a of the North Rhine-Westphalia Police Act. In addition, without the accompanying use of technical recording equipment, the statements of those affected can only be captured, from the outset, in a limited way and cannot be recorded under any circumstances. There is therefore ultimately not a particularly high risk of collecting data relevant to the core of private life. It is still possible that highly confidential situations — such as persons sitting away from the crowds in a restaurant or on a secluded stroll — will be captured. Nevertheless, the intrusion into the private sphere is at least not typical in the case of surveillance in public spaces. The interference is further limited by the fact that the combined measure can only be ordered on a temporary basis for up to a month (albeit with the possibility of an extension). This was already the case in 2015, which is the time relevant here.
2. Measured against the weight of this interference, the combined application of both authorising provisions does not meet the requirements of their justification under constitutional law. They do not meet the requirements of the proportionality principle, nor those of the principle of specificity.
a) § 16a(1) first sentence no. 2 and § 17(1) first sentence no. 2 of the North Rhine-Westphalia Police Act in their combined application are suitable and necessary in a constitutional sense for achieving a legitimate aim. The authorising provisions serve the legitimate aim of increasing the effectiveness of precautionary measures to prevent criminal offences. They provide police authorities, especially through the combination of different measures, with the investigative means to increase the effectiveness of precautionary measures to prevent serious criminal offences within the meaning of § 8(3) of the North Rhine-Westphalia Police Act, because they enable police authorities to more purposefully implement preventative follow-up measures. Both the security of the state, as a constituted power of peace and order, and the security of the population it is bound to protect (while respecting the dignity and the intrinsic value of the individual) are constitutional values that rank equally with other constitutional interests that are accorded high standing.
b) § 16a(1) first sentence no. 2 and § 17(1) first sentence alternatives 1 and 2 no. 2 of the North Rhine-Westphalia Police Act in their combined application are not compatible with the requirements of the principle of proportionality in the strict sense with regard to the required threshold for interference.
The requirements for proportionality in the strict sense correspond to the severity of the interference. For any given data collection, these requirements must be met both in regard to the legal interest to be protected and the threshold for interference, meaning the grounds for carrying out the surveillance. Whether the provisions under review serve the protection of especially weighty legal interests need not be examined here, because it is not essential for the decision of the case at hand. The proportionality test is therefore limited to the threshold for interference.
The constitutional justification of data collection by means of covert surveillance using particularly intrusive means in the area of public security requires either a specific danger or at least an identifiable danger as a threshold for interference. It must be guaranteed that a specific danger to the legal interests protected by the provision is sufficiently ascertainable in the individual case and that the person targeted by these measures appears, from the perspective of a reasonable observer examining the objective circumstances, to be involved.
The referred provisions do not satisfy these requirements. The authorising provisions, even in their combined application, merely require that acts give rise to the assumption that persons “want to commit” particular criminal offences. This does not meet the requirements of an identifiable danger, and even less those of a specific danger. The provisions do not rule out that this prognosis is based on general empirical judgments alone. They do not include the requirement that it must at least be possible to determine based on facts, the type of incident that might occur, and that it will occur within a foreseeable timeframe. Additionally, there must be facts that indicate the involvement of specific persons whose identity is known at least to such an extent that the surveillance measures can be targeted at and for the most part limited to them. Thus, these provisions do not set sufficiently specific criteria on which the authorities and the courts can base their assessment and could give rise to disproportionately broad measures.
c) § 16a(1) first sentence no. 2 and § 17(1) first sentence alternatives 1 and 2 no. 2 of the North Rhine-Westphalia Police Act in their combined application are also not specific enough in regard to the threshold for interference that they require.
The mere unspecified possibility of someone sometime in the future wanting to commit a serious criminal offence, even if based on facts, does not meet the requirement of specificity. The provisions do not provide for any limitations regarding possible indicators or the degree of likelihood of such a course of events, or any limitations in terms of time. The determination of the preconditions and limitations of the interference is instead left to the police. The police decides on the limitations placed on the freedom of citizens without detailed statutory guidelines and must create their own standards in this regard. However, the creation of standards to limit interference with the freedom of citizens is the responsibility of the legislator.
IV. The grounds for the unconstitutionality of the provisions combined here do not affect the core of the powers granted, but rather specific aspects of their legislative design. Under such circumstances, the legislator is to be given the opportunity to remedy the constitutional concerns.
The declaration that the provisions are incompatible with the Constitution is combined with an order that they are nonetheless to stay in effect on an interim basis until 31 December 2025 at the latest and that long-term observations combined with the use of technical means to take and record images may only take place if, other requirements for interference notwithstanding, there is at least an identifiable danger.