an unlimited area (Art. 33(2) fifth sentence BayPAG). The exact meaning of this is not
very clear and it requires interpretation. What is meant is that measures may only be
conducted at individual locations where success is likely, i.e. it is limited in time and
space, but not for the purpose of ruling out free movement over a wide area or even
over a public authority’s entire territory. Thus, the carrying out of such measures is
further limited in accordance with the prohibition of excessive measures and, insofar
as it supplements the other constituent elements, is not objectionable in respect of
the requirements of specificity.
The provision contains no requirements on whether automatic number plate recognition measures are to be carried out in a mobile or stationary manner, permanently
or temporarily. Thus, the relevant decision lies within the discretion of the police. This
is neither objectionable with regard to the requirement of specificity nor on its face.
The discretion in question must be exercised subject to the principle of proportionality. Setting up a permanent automatic number plate recognition measure to avert specific individual dangers is ruled out from the outset.
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bb) In its second option, the Act regulates automatic number plate recognition in
‘dangerous places’ (Art. 33(2) second to fifth sentences, Art. 13(1) no. 2 BayPAG).
This provision is not objectionable under constitutional law when properly interpreted
and applied in the individual case.
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(1) The provision authorises automatic number plate recognition in places where,
based on factual indications, it must be assumed that persons plan, prepare or commit criminal acts, persons not holding a necessary residence permit meet, offenders
hide or persons are involved in prostitution.
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Upon reasonable interpretation of the provision in light of the principle of proportionality, it does not meet with constitutional objections. The justification for this provision
is the aim of contributing to the safety of these places and preventing their becoming
a sheltered point of origin of criminal acts. Insofar as the provision focuses on places
where people are involved in prostitution, it does not target prostitutes but is intended
as a protection against crime committed in connection with prostitution - and thus ultimately as protection of the prostitutes themselves. Irrespective of the weight of any
individual violations of the law, the aim of counteracting the danger that such places
will become gathering places for offenders and people without the right of residence
ties in to a structurally increased risk of danger and thus serves a public interest of
considerable weight.
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In doing so, the provision does not attach to a merely abstract danger which certain
places might constitute but rather it limits the measures to places for which there are
factual grounds to believe that they are indeed frequented by the persons specified
in the provision. Thus, the provision does not provide a general authorisation to carry
out automatic number plate recognition at practically all major traffic hubs or gathering places for large numbers of people. Rather, such measures are only authorised
at places about which the police have specific relevant information. This also applies
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