The Appeals Chamber of the Higher Court of the Canton of Berne has rejected a non-acceptance decision of the Office of the Attorney General with legally binding resolution dated December 29, 2017 (PDF) essentially dismissed.
To judge was the secretly attaching a GPS tracker on a car; the tracker was discovered by chance. The complainant suspected (which was neither confirmed nor refuted in the proceedings) that an insurance company had attached the tracker.
According to the Board of Appeal’s assessment, the non-admission was justified:
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- Art. 179quater StGB was not applicable because a GPS tracker no “recording device within the meaning of Art. 179quater StGB. Moreover, driving a car is an everyday activity in a public area that can be observed by the naked eye, so that there is no violation of the private sphere.
- Data requiring special protection in the sense of Art. 179novies StGB were not involved, and neither was a personality profile: no “directly personal information” can be derived from the recording of a vehicle by GPS; in particular, no conclusions can be drawn about who drove the vehicle or where the person ultimately goes, since he or she continues on foot after parking the vehicle; it is certain,
that the mere Recording a movement profile of a vehicle (and not of the complainant personally!) no conclusion on a personality profile allows.