law or for the protection of assemblies is also compatible with Art. 8 GG.
While number plate recognition at a police checkpoint controlling access to an assembly does constitute an interference with Art. 8(1) GG (cf. BVerfGE 69, 315 <349>;
84, 203 <209>), the interference is justified. In respect of the special protection afforded to the freedom of assembly in particular, it also satisfies the requirements of
the principle of proportionality. According to this principle, number plate recognition
measures do not have to be limited to situations of immediately imminent danger.
The threshold for the exercise of powers in case of immediately imminent danger was
developed by the judiciary with regard to bans on and dissolutions of assemblies.
This threshold does not have to be applied to measures carried out prior to an assembly which are at issue here. With respect to assembly bans or dissolutions such
measures carry less weight of interference since they do not as such impair the independent organisation of the assembly and actually protect it. As justification for such
measures prior to an assembly it is sufficient that there be specific indications with
regard to a particular assembly that criminal offences under assembly law or the administrative offences stated in the provision will be committed with sufficient probability. This also corresponds to the question whether, on the basis of a probability prognosis, a specific danger exists, which is relevant to the interpretation of Art. 13(1) no.
4 BayPAG and thus also determines the requirements for number plate recognition.
Regarding the interference with Art. 8 GG, the formal requirement to expressly specify the affected fundamental rights has been complied with (cf. Art. 74 BayPAG).
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(2) Based on the above-described interpretation of Art. 33(2) third sentence BayPAG, the scope of data records, too, is not disproportionate. Since specifically those
records which may be relevant to achieving the purpose of the measure must be selected from the data records listed in the provision, a sufficient limitation as well as
the focus on the protection of a legal interest of at least considerable weight are ensured.
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(3) If one interprets the provision as described, the specification of its constituent
elements is, from an overall perspective, also compatible with the Constitution. With
respect to the general standards of Art. 33(2) second to fifth sentences, which are to
be taken into account within the scope of an overall balancing, reference is made to
what was mentioned above (see para. 113 et seq. above).
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ee) As its fifth option, the provision authorises the use of automatic number plate
recognition in the context of random sweep searches (Schleierfahndungen)
(Art. 33(2) second to fifth sentences, Art. 13(1) no. 5 BayPAG). This option does not
fully satisfy the constitutional requirements.
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(1) From a constitutional perspective, the provision is justified as an offsetting measure aiming to combat specific criminal acts the commission of which may have been
facilitated through the abolition of border checks. It is imperative, however, that automatic number plate recognition measures be subject to consistent and clear limitations regarding their purpose and location that correspond to these considerations.
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