The Federal Supreme Court has ruled with Judgment from October 7, 2019 decided that the Thurgau Police Act should be No sufficiently specific legal basis for a automatic vehicle search and traffic monitoring (“AFV”) forms.
In the case of mobile or stationary AFV, the license plate of the vehicle is first recorded by means of a camera and the identity of the owner is ascertained. Then the time, location, direction of travel and (other) vehicle occupants are recorded. The data is then merged with other data collections and automatically compared.
The AFV thus enables serial and simultaneous processing of complex data sets within fractions of a second, namely Neither occasion-related nor on the basis of a concrete suspicion. The possibility of subsequent (secret) use and the associated feeling of surveillance could substantially inhibit self-determination (“chilling effect”, “effet dissuasif”). There would therefore be a serious encroachment on the right to personal freedom guaranteed by the Federal Constitution (Art. 10 para. 2 BV) and to information self-determination (Art. 13 para. 2 BV).
Severe encroachment on fundamental rights require a clear and explicit legal basis in a formal law. The Thurgau Police Act does not provide such a basis. First of all, the purpose of the data processing was unclear. In addition, it was not foreseeable for road users what information would be collected, stored and linked or compared with other databases. The Thurgau Police Act also lacks a dense set of standards with regard to the storage and destruction of data. In particular, the law did not contain any obligation to delete the data immediately and without trace in the event of a “no-hit”. The records are therefore Unlawfully collected evidence within the meaning of Art. 141 para. 2 Criminal Procedure Code. These were in principle unusable unless their use was indispensable for the investigation of serious criminal offenses, which was not the case here.
In Germany, the Federal Constitutional Court has License plate scanning of the federal states of Bavaria, Baden-Württemberg and Hesse in December of last year were also declared at least partially unconstitutional, in particular because the relevant laws of the states did not satisfy the principle of proportionality. The controls were not limited to the protection of legal interests of at least considerable weight and, as a means of dragnet searches, did not have a sufficiently specific border reference (decisions of the BVerfG of December 18, 2018, 1 BvR 142/15, 1 BVR 2795/09, 1 BvR 3187/10). The decisions provide valuable pointers for any legislation by the Länder that may be in conformity with the constitution.