The Hague Court of Appeal questions the legality of ANPR camera surveillance

Necessity: insufficient justification by the State

In the interim judgement published today oordeelt het Hof Den Haag dat de Staat has not yet provided sufficient evidence that the large-scale introduction of ANPR camera surveillance is necessary in a democratic society. The Court considers the following in this regard:

• The reference to the explanatory memorandum to the ANPR Act (Article 126 jj of the Code of Criminal Procedure) is not sufficient, as it was based on expectations by the legislature prior to its entry into force, and the Act has now been in force for some time.
• Whilst previous reports are indeed relevant, they are too general and lack quantitative detail. The mere observation that ANPR recognition has been decisive in “some cases” is insufficient given the scale of the structural data processing.
• The examples provided by the State are “largely anecdotal” and there is no statistical evidence to support them.

The Court gives the State the opportunity to submit further, objective and verifiable information regarding, amongst other things: the frequency and types of cases in which ANPR has been used, its independent contribution to investigations, the necessity of the four-week retention period, and the question of whether less intrusive alternatives would substantially reduce its investigative value.

Het Hof vraagt de Staat in dit verband om de volgende informatie:

1. What specific investigative problems does Article 126jj of the Code of Criminal Procedure aim to resolve? 
2. How often, and in what types of cases, has information obtained under Article 126jj of the Code of Criminal Procedure been used in the course of criminal investigations? 
3. In how many and which types of cases has the application of Article 126jj of the Code of Criminal Procedure made an independent or substantial contribution?
4. To what extent did that contribution depend specifically on the preventive retention of passage data which, at the time of recording, had not yet been linked to A specific suspicion, a fugitive or an enquiry?
5. To what extent does practical experience show that the full retention period of four weeks is actually necessary, for example because relevant enquiries relate to data that is more than seven, ten or fourteen days old? 
6. Is there any evidence in the available usage data to suggest that less far-reaching variants of the current scheme would substantially affect the investigative value of Article 126jj of the Code of Criminal Procedure? would be reduced, for example a system in which transit data is, in principle, retained for less than four weeks, but in which longer retention is only Is this possible for certain categories of data, locations, types of cases or instances where there is a specific and demonstrable overriding investigative interest? 
7. Given current investigative practice, the existing CCTV data and the experience gained since its introduction, does the alleged necessity still exist? 

Structural shortcomings in supervision

The Court also concludes at this stage that the ANPR legislation on two parts is not consistent with the protection of privacy under international law:

1. There is no prior judicial review in the consultation process. At present, the public prosecutor issues the order to access the data. The Court rules that the public prosecutor — as a body involved in the criminal investigation and responsible for bringing charges — does not qualify as an independent supervisory authority. Access to retained ANPR data must be subject to prior review by a court or another sufficiently independent administrative body.
2. There is no independent oversight of CCTV camera placement. The choice of camera locations has a significant impact on the scope and intensity of data processing. The Court rules that this choice, too, must be subject to review by an independent authority — not necessarily a court, but a body that is sufficiently independent, effective and competent in the matter.

Potential impact

The Court’s ruling has potentially far-reaching consequences for investigative practice and the legislative framework governing automated data processing:

• A change in the law is necessary. The view that the public prosecutor does not qualify as an independent reviewing authority for the consultation of ANPRdata implies that Article 126jj of the Code of Criminal Procedure must be amended to provide for prior judicial authorisation or review by an independent administrative body. This is in line with European case law and may have implications for other investigative powers based on an order from the public prosecutor.
• Independent oversight of CCTV camera installation. The requirement for an independent review of the selection and justification of CCTV camera locations is new in the Dutch context and may have implications for the design of the CCTV plan and the governance regarding the use of ANPR.
• The State’s duty to provide evidence. The Court applies a rigorous test of necessity. The State cannot rely solely on anecdotal examples, but must substantiate, using objective, verifiable and, preferably, quantitative data, that there is a pressing social need justifying a structural infringement of privacy. This sets a high standard of proof for the authorities in relation to large-scale and automated data processing for the purposes of criminal investigations.
• Impact on other bulk-handling systems. Hoewel het Hof benadrukt dat ANPR-gegevens in aard en intensiteit verschillen van telecommunicatiegegevens, past het Hof de waarborgvereisten uit Europese telecommunicatie-rechtspraak wel degelijk analoog toe. Dit kan richtinggevend zijn voor andere vormen van grootschalige, preventieve gegevensverwerking door de overheid.
• Monitoring and compliance. The judgement confirms that shortcomings in the actual implementation — such as the lack of active monitoring for unauthorised access — are taken into account by the court when assessing the safeguards as a whole. Organisations that manage automated surveillance systems would therefore be well advised to ensure their internal control measures are in order and to be able to demonstrate this.

This is an interim judgment. The Court has not yet delivered a final ruling on the necessity, proportionality and subsidiarity of the ANPR system. The final assessment will depend on the further evidence that the State is required to provide. In view of the principled interim judgment, Privacy First looks forward with confidence to a critical final ruling from the Court. 

Read HERE the full interim judgment and the accompanying press release of the Court in The Hague.

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