Video surveillance in Klostergarten Passau

GFF supported a complaint lodged by a citizen of Passau contesting the video surveillance of the centrally located square “Klostergarten”. In recent years, the police have at best only occasionally recorded crimes committed at this location, and the numbers have been declining recently. Nevertheless, citizens are now being subjected to unwarranted video monitoring by ten cameras placed at that location. This policy impairs social exchange in the public sphere and violates the fundamental right to informational self-determination of those being monitored. Our lawsuit was successful: In June 2023, the Bavarian Administrative Court ruled in our favour and declared the surveillance to be unlawful.

Since December 2018, the city of Passau has been monitoring every corner of the municipal monastery garden with an elaborate installation of cameras. The monastery garden is slightly smaller than a football field. The square is located in the immediate vicinity of the central bus station, the university, and numerous shopping and refreshment facilities. Due to its location, thousands of people cross the square daily. All passers-by are now recorded by the cameras, and the recordings are stored for 72 hours.

The recorded images from the monastery garden can be inspected subsequently by the Ordnungsamt and, in exceptional cases, by the police or the public prosecutor’s office. For purposes of criminal prosecution, a permanent storage of the recordings is possible in the case of offences punishable by more than two months. The video surveillance system is only switched off between 01:00 and 06:00 hours. An employee of the city concurrently observes the recordings live on monitors located in a surveillance cottage on the square.

Crime prevention despite low crime rate

With the installation of video surveillance, the city of Passau has declared its intention to strengthen the public’s sense of security. In recent years, however, the monastery garden has attracted less and less attention as a “crime scene”. In 2017, only three mild injuries, one serious injury, and four instances of insulting or verbally abusive behavior were recorded by the police. Fifteen drug offences were also recorded. The drug offences recorded in Passau almost exclusively involve cannabis. How many of these cases resulted in criminal convictions is unknown.

No legal basis for urban video surveillance

Given the low crime rate, it is likely the city is too safe to justify such police video surveillance. Video surveillance by police authorities is only permitted at so-called “crime hot spots”. The GFF wishes to have the courts issue a legal clarification that this requirement also applies to video surveillance of urban areas in general.

Accordingly, GFF and Josef Ilsanker of Passau filed a lawsuit in the Regensburg Administrative Court challenging the system of police video surveillance in Passau. The lawsuit was initiated and significantly assisted by Passau students Constantin Breß and Till Casimir.

Video surveillance violates core fundamental rights

Video surveillance represents a severe encroachment on the right to informational self-determination. If it is no longer apparent to an individual who knows what about him or her or when another person or entity acquires such knowledge, he or she will adapt his or her behavior so as not to attract attention. This leads not only to the curtailment of individual social interactions, but also to the derogation of the democratic body politic. This follows because public spaces serve a vital public function as places of social interaction and free exchange.

Through increasing and encroaching surveillance, the state is depriving its citizens of the unfettered use of these public spaces. The incursion on public spaces by means of video surveillance, as in the case of Passau, is particularly severe because of the large number of citizens who are affected and because the monitoring is not based on any cause or suspicion of wrongdoing.

On 13 June 2019, we filed a complaint against video surveillance in Passau before the Regensburg Administrative Court. The action was dismissed as inadmissible by court decision of 6 August 2020. We filed an appeal against this and gave detailed reasons on 13 October 2020.

BAVARIAN ADMINISTRATIVE COURT DECLARES SURVEILLANCE UNLAWFUL

In June 2023, the Bavarian Administrative Court (BayVGH) published its decision and declared the long-standing video surveillance of the Passau monastery garden to be unlawful. It hence upheld the appeal of the Passau plaintiff Josef Ilsanker, which we supported.

The court followed the GFF's arguments: At no time was there a situation of danger in the Passau Klostergarten that justified video surveillance and the associated restrictions on fundamental rights. The city of Passau carried out the surveillance on a legal basis in the Data Protection Act, which authorises it to safeguard its property, and not primarily to avert danger. The BayVGH clarified that recourse to this legal basis does not change the fundamental rights balancing. The BayVGH made the important finding that the GDPR does not shorten any recognised possibilities of legal action against violations of fundamental rights, as erroneously assumed by the Regensburg Administrative Court.

The decision is an important signal in times when the possibilities for video surveillance are increasingly expanded in police and assembly laws. Video surveillance in public spaces is an intensive encroachment on fundamental rights that is only permissible under very narrow conditions.

Background information

• The complaint before the administrative court of Regensburg can be found at the end of the page (in German).
• The plaintiff’s response to the defendant’s obersvations can be found at the end of the page (in German).
• You can find a supplementary statement by the plaintiff on the risks of public video surveillance at the end of the page (in German).
• The file number of the proceedings is RN 9 K 19.1061.