620
02.09.2010
Press release issued by the Registrar
Chamber judgment
Not Final1
Uzun v. Germany (application no. 35623/05)
GPS SURVEILLANCE OF SERIOUS CRIME SUSPECT JUSTIFIED
Unanimously
No violation of Article 8 (right to respect for private and family life)
No violation of Article 6 § 1 (right to a fair trial)
of the European Convention on Human Rights
Principal facts
The applicant, Bernhard Uzun, is a German national who was born in 1967 and lives in
Mönchengladbach (Germany). The case concerned his surveillance via the Global
Positioning System (GPS) as part of a criminal investigation. It is the first case concerning
GPS surveillance before the European Court of Human Rights.
In October 1995, the German Federal Public Prosecutor General (Generalbundesanwalt)
instituted a criminal investigation against Mr Uzun and a presumed accomplice on charges
of having participated in bomb attacks for which the so-called Anti-Imperialist Cell had
claimed responsibility. This organisation was pursuing the armed combat abandoned since
1992 by the Red Army Faction (RAF), a left-wing extremist terrorist movement.
The Federal Office for Criminal Investigations (Bundeskriminalamt) was in charge of the
investigation, which included visual surveillance of Mr Uzun during weekends, video
surveillance of the entrance of the building in which he lived, phone tapping and the
installation of transmitters in the car of his presumed accomplice, which they often used
together. After the two men had detected and destroyed the transmitters, and in view of the
fact that they avoided speaking to each other over the phone, the Prosecutor General
ordered their observation via GPS. The Federal Office for Criminal Investigations installed a
GPS receiver in the car of Mr Uzun’s accomplice in December 1995, allowing it to determine
the location of the car. This surveillance lasted until the two men were arrested in February
1996.
1 Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its
delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel
of judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and
deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on the day the request is
rejected.
Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its
execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.
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In the criminal trial opened against the two men, the Düsseldorf Court of Appeal dismissed
Mr Uzun’s objection to the use of the GPS data as evidence, finding that it was covered by
the Code of Criminal Procedure and that no court order had been required. In September
1999, the court convicted Mr Uzun of attempted murder and of four counts of causing an
explosion and sentenced him to 13 years’ imprisonment. It found that the two men had
placed bombs in front of the houses of members or former members of Parliament and in
front of a consulate. The evidence included data from the GPS surveillance, which was
corroborated by information obtained by other methods of observation. Mr Uzun appealed,
complaining in particular about the use of information obtained by GPS surveillance as
evidence. In January 2001, the Federal Court of Justice (Bundesgerichtshof) dismissed his
appeal.
His subsequent constitutional complaint was dismissed in April 2005 by the Federal
Constitutional Court (Bundesverfassungsgericht). It pointed out that the interference with Mr
Uzun’s right to privacy by his surveillance via GPS had been proportionate in view of the
gravity of the offences and the fact that he had evaded other measures of surveillance. It
further found that the existing procedural safeguards were sufficient to prevent full
surveillance of a person by which an exhaustive personal profile could be drawn up.
However, the legislator had to observe whether, in view of technical developments, those
safeguards were sufficient to grant an effective protection of fundamental rights and to
prevent uncoordinated investigation measures by different authorities.
Complaints, procedure and composition of the Court
The applicant complained that his surveillance via GPS and the use of the data obtained
thereby in the criminal proceedings both violated his rights under Article 8, and, having been
the essential basis for his conviction, Article 6 § 1.
The application was lodged with the European Court of Human Rights on
24 September 2005.
Judgment was given by a Chamber of seven judges, composed as follows:
Peer Lorenzen (Denmark), President,
Renate Jaeger (Germany),
Karel Jungwiert (Czech Republic),
Mark Villiger (Liechtenstein),
Isabelle Berro-Lefèvre (Monaco),
Mirjana Lazarova Trajkovska (“The former Yugoslav Republic of Macedonia”)
Ganna Yudkivska (Ukraine), judges,
and also Claudia Westerdiek, Section Registrar.
Decision of the Court
The Court first observed that although the investigating authorities had installed the GPS
receiver in a car belonging to a third person, Mr Uzun’s accomplice, they had clearly
intended to obtain information on both suspects, as from their previous investigations the
authorities had been aware that the men were using the car together. Information on the
movements of the accomplice’s car was linked to Mr Uzun by means of additional visual
surveillance, and none of the domestic courts had expressed any doubts that he had been
subjected to surveillance via GPS.
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The authorities had systematically collected and stored data determining Mr Uzun’s
whereabouts and movements in the public sphere. They had further used it in order to draw
up a pattern of his movements, to conduct additional investigations and to collect additional
evidence at the places to which he had travelled, which was later used at the criminal trial.
The Court found those factors sufficient to conclude that the GPS observance of Mr Uzun
had interfered with his right to respect for his private life under Article 8.
As to whether that interference had been in accordance with the law, the Court considered
that the surveillance at issue had a basis in the German Code of Criminal Procedure. The
Court underlined that surveillance via GPS of movements in public places was to be
distinguished from other methods of visual or acoustical surveillance in that it disclosed less
information on a person’s conduct, opinions or feelings and thus interfered less with his or
her private life. The Court, therefore, did not see the need to apply the same strict
safeguards against abuse it had developed in its case-law on the interception of
telecommunications, such as the need to precisely define the limit on the duration of such
monitoring or the procedure for using and storing the data obtained.
The Court considered that the German courts’ unanimous findings that GPS surveillance
was covered by domestic law had been reasonably foreseeable given that the relevant
provisions provided for technical means to be used, in particular, “to detect the perpetrator’s
whereabouts”. Domestic law moreover set strict standards for authorising GPS surveillance;
it could be ordered only against a person suspected of a criminal offence of considerable
gravity.
The Court welcomed the fact that German law had been changed subsequent to the
investigation in Mr Uzun’s case to reinforce the protection of the right of a suspect to respect
for his private life by requiring a court order for systematic surveillance of a suspect for a
period exceeding one month. However, even under the provisions in force at the relevant
time, surveillance via GPS was subject to judicial control. The Court found that subsequent
judicial review of Mr Uzun’s surveillance by GPS had offered sufficient protection against
arbitrariness in the circumstances of the case. Subsequent judicial review allowed for
evidence obtained from an illegal GPS surveillance to be excluded and thus constituted an
important safeguard, as it discouraged the investigating authorities from collecting evidence
by unlawful means. The Court concluded that the interference with Mr Uzun’s right to respect
for his private life had been in accordance with the law.
The Court noted that the GPS surveillance of Mr Uzun had been ordered to investigate
several counts of attempted murder for which a terrorist movement had claimed
responsibility and to prevent further bomb attacks. It therefore served the interests of
national security and public safety, the prevention of crime and the protection of the rights of
the victims. It had only been ordered after less intrusive methods of investigation had proved
insufficient, for a relatively short period of time – three months – and it had affected Mr Uzun
only when he was travelling with his accomplice’s car. Therefore, he could not be said to
have been subjected to total and comprehensive surveillance. Given that the investigation
concerned very serious crimes, the Court found that the GPS surveillance of Mr Uzun had
been proportionate.
The Court unanimously concluded that there had been no violation of Article 8. It further
unanimously held that, in view of those findings, no separate issue arose under Article 6 § 1.
***
The judgment is available in English and in French. This press release is a document
produced by the Registry. It does not bind the Court. Decisions, judgments and further
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The European Court of Human Rights was set up in Strasbourg by the Council of Europe
Member States in 1959 to deal with alleged violations of the 1950 European Convention on
Human Rights.
