Information Note on the Court’s case-law No. 133
August-September 2010
Uzun v. Germany - 35623/05
Judgment 2.9.2010 [Section V]
Article 8
Article 8-1
Respect for private life
GPS surveillance of suspected terrorist: no violation
Facts – In October 1995 the applicant and another man (S.) were placed under surveillance on the orders of an investigating judge because of their suspected involvement in bomb attacks that had been carried out by an extreme left-wing group to which they belonged. Realising that they were under surveillance, the two men sought to escape detection by destroying transmitters that had been installed in S.’s car and by avoiding use of the telephone. To counteract this, in December 1995 the Federal Public Prosecutor General authorised their surveillance by a Global-Positioning System device (GPS) which the authorities arranged to be fitted in S.’s car. The applicant and S. were arrested in February 1996 and subsequently found guilty of various bomb attacks between January and December 1995 on the basis of the evidence obtained through their surveillance, including GPS evidence linking the location of S.’s car to the scene of one of the attacks. The applicant was given a thirteen-year prison sentence. His appeals to the Federal Court of Justice and the Federal Constitutional Court were dismissed, with the latter court holding, inter alia, that the interference with his right to privacy by GPS surveillance had been proportionate in view of the gravity of the offences and the fact that he had evaded other measures of surveillance.
Law – Article 8: Although installed in a car belonging to a third party (S.), the GPS receiver had clearly been intended to obtain information on the applicant also, as the authorities had been aware from their previous investigations that the two men were using the car together. The applicant therefore had victim status. Further, the GPS surveillance in the applicant’s case had been used to systematically collect and store data on his whereabouts and movements over a three-month period. That data had in turn enabled the authorities to draw up a pattern of his movements, conduct additional investigations and collect further evidence that had been used at his trial. Accordingly, the GPS surveillance and the processing and use of the data thereby obtained had interfered with the applicant’s right to respect for his private life.
As to whether the interference was in accordance with the law, the surveillance had a basis in a statutory provision* that was accessible to the applicant. The questions whether that provision was sufficiently precise to satisfy the foreseeability requirement and whether it afforded adequate safeguards against abuse were not to be judged by reference to the rather strict standards that applied in the context of surveillance by telecommunications**, as GPS surveillance of movements in public places was less intrusive.
The domestic courts’ ruling that the provision in question (which permitted the use of photographs and visual recordings and “other special technical means” of surveillance in respect of criminal offences of “considerable gravity”) covered GPS surveillance constituted a reasonably foreseeable development and clarification of the law by judicial interpretation. The Court also considered that adequate and effective safeguards against abuse had been in place. In that connection, it noted, firstly, that GPS surveillance could only be used in respect of offences of considerable gravity where other methods had less prospect of success or were more difficult; secondly, the absence of a fixed statutory limit on the duration of the surveillance had been remedied by the domestic courts’ review of the proportionality of the measure; thirdly, it had not been necessary for the legislation to require prior authorisation of the surveillance by an independent body as the criminal courts’ power to conduct an ex post facto review of the legality of such surveillance (and to exclude evidence obtained unlawfully) had provided sufficient protection against arbitrariness; and, lastly, the domestic courts’ application of the proportionality principle had provided sufficient protection against the applicant becoming subject to total surveillance as a result of an accumulation of uncoordinated measures being taken by different authorities. The interference with the applicant’s right to respect for his private life had thus been in accordance with the law.
It had pursued the legitimate aims of protecting national security, public safety and the rights of the victims, and of preventing crime. It had also been proportionate: GPS surveillance had been ordered only after less intrusive methods of investigation had proved insufficient, had been carried out for a relatively short period (some three months), and had affected the applicant only when he was travelling in his accomplice’s car. The applicant could not be said to have been subjected to total and comprehensive surveillance. Given that the investigation had concerned very serious crimes, the applicant’s surveillance by GPS had thus been necessary in a democratic society. In view of that finding, no separate issue arose under Article 6 § 1.
Conclusion: no violation (unanimously).
* Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure.
** See, for instance, Weber and Saravia v. Germany (dec.) (no. 54934/00, 29 June 2006, Information Note no. 88), Liberty and Others v. the United Kingdom (no. 58243/00, 1 July 2008, Information Note no. 110) and Kennedy v. the United Kingdom (no. 26839/05, 18 May 2010, Information Note no. 130).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
Click here for the Case-Law Information Notes
Full & Egal Universal Law Academy