Germany: unsuccessful constitutional complaint challenging electronic monitoring of persons released from prison (‘electronic tagging’)

In an order published today, the Second Senate of the Federal Constitutional Court held that the statutory provisions on the electronic monitoring of persons released from prison are compatible with the Basic Law.

While such electronic monitoring constitutes a very intrusive interference with fundamental rights, in particular with the fundamental right to informational self-determination and the general right of personality following from Art. 2(1) in conjunction with Art. 1(1) of the Basic Law (Grundgesetz – GG), this interference is reasonable (zumutbar) and is not disproportionate in relation to the weight of the legal interests electronic monitoring serves to protect.

Facts of the case:

Electronic monitoring was introduced by the Act Reorganising the Law on Preventive Detention and Enacting Provisions Related Thereto (Gesetz zur Neuordnung des Rechts der Sicherungsverwahrung und zu begleitenden Regelungen) of 22 December 2010, which entered into force on 1 January 2011, following the Judgment of the European Court of Human Rights of 17 December 2009, M. v. Germany, no. 19359/04. In this judgment, the European Court of Human Rights held that continued preventive detention after expiry of the maximum period of ten years applicable at the time of conviction violated Convention rights. As a result of the judgment, persons at high risk of recidivism were released from prison and placed under police surveillance, sometimes around the clock. According to legislative intent, electronic monitoring was to replace such surveillance measures. The whereabouts of the persons concerned were to be determined by GPS. For that purpose, an electronic tag had to be attached to the ankle of the persons concerned.

Electronic monitoring was inserted as measure no. 12 into the catalogue of directions, set out in § 68b(1) first sentence StGB, that can be issued by a court in the context of the supervision of conduct of offenders. Pursuant to § 68b(1) third and fourth sentence StGB, such a measure can essentially be imposed if supervision of conduct was ordered following a prison sentence of at least three years that has been served in full, or a custodial measure of prevention and correction imposed or ordered because the person concerned had committed an offence of the type listed in § 66(3) first sentence StGB, and if there is a risk that the convicted person will commit further qualified criminal offences. Moreover, imposing the measure must appear necessary to prevent the convicted person from committing further qualified criminal offences. Qualified criminal offences include, in particular, offences against life, physical integrity, personal liberty or sexual self-determination as well as offences against public order. The data stored in the context of electronic monitoring by the authority supervising the convicted person’s conduct may only be used without that person’s consent if this is necessary for the purposes specified in § 463a StPO. These purposes include, in particular, the punishment of a breach of a court-ordered direction, the averting of a considerable present danger to weighty legal interests and the prosecution of a qualified criminal offence.

The complainants were released from prison after having served long sentences and were initially placed under police surveillance. In the context of the supervision of their conduct, the criminal courts ordered electronic monitoring of the complainants, who were then made to wear electronic ankle tags.

In particular, the complainants claim a violation of Art. 1(1) GG and Art. 2(1) in conjunction with Art. 1(1) GG, both in its manifestation as the right to informational self-determination and in its manifestation as the requirement to seek the social reintegration of offenders (Resozialisierungsgebot). In addition, they assert a violation of Art. 12 GG, Art. 11 GG and Art. 2(2) second sentence GG as well as of Art. 103(2) GG and of the general principle of the protection of legitimate expectations; finally, they also claim a violation of Art. 19(1) second sentence GG.

Key considerations of the Senate:

The constitutional complaints are admissible but unfounded.

  1. The possibility to determine, based on specific grounds, the whereabouts of a person subject to court-ordered directions pursuant to § 68b(1) first sentence no. 12 and § 68b(1) third sentence StGB in conjunction with § 463a(4) StPO does not violate the complainants’ fundamental rights or equivalent rights.

a) The challenged provisions do not interfere with the guarantee of human dignity under Art. 1(1) GG.

They merely aim to enable the competent authority to determine the whereabouts of the persons concerned at any time if this is required by specific grounds. Electronic monitoring does not subject the persons concerned to optical or acoustic surveillance, and thus does not cover the activities undertaken by them. Moreover, the legislator prohibited the exact tracking of persons concerned within their home and limited the data to be collected to a determination of their whereabouts. Yet the mere determination of someone’s whereabouts by means of GPS tracking does generally not encroach on the inviolable core of private life, which is beyond the reach of any monitoring by the state.

Likewise, the electronic determination of someone’s whereabouts does not result in “sweeping surveillance” that would be incompatible with human dignity and turn the persons concerned into mere objects of state action. The data is collected automatically and only provides information on the whereabouts of the persons concerned. While the data required to this end is collected permanently, it only concerns those whereabouts. The level of surveillance arising from electronic monitoring is not so comprehensive as to cover almost all movements and expressions, nor does it allow for the compilation of personality profiles.