| 英文摘要 |
In the last two decades, the police, if necessary, may often covertly or with technical means collect personal data in the context of the protection against threats and the prevention of criminal offences (particularly the protection against threats from international terrorism). The issue of covert surveillance has received considerable critical attention and is very controversial with respect to the violation of fundamental rights. However, previous cases decided by the courts of law in Taiwan has mostly been considered to indicate that such covert surveillance measures (particularly the secret surveillance and recording of non-public speech, the recording of images, the use of tracking devices, and the use of police informers and undercover investigators) are not compulsory methods, nor do they require the legal basis for interference. Furthermore, these covert surveillance measures are based on the long-term, organized, and continuous data collection for targeted individuals supplemented by technological devices when necessary, and might also involve covering third parties for inevitable reasons. These measures on the whole can be regarded as an exceptionally serious invasion of privacy when aiming and using modern technology to record as many statements and movements as possible. Recently, the Federal Constitutional Court in Germany ruled on the covert surveillance measures of the Federal Criminal Police Office Act on April 20, 2016. This judgement indicated that these covert surveillance measures need to satisfy not only the legal basis for interference, but also the constitutionality requirements, such as the due process of law in the principle of proportionality. If the standard set by the State for operating covert investigative activities affect particular protected areas of privacy or demonstrate a particularly high intensity of encroachment, the weight of interference with fundamental rights shall be considered by appropriate procedural precautions. Moreover, legal access must normally be subject to a court order and in the form of procedural compensation. However, doubts continue to arise concerning whether this procedural precaution (particularly the reservation of a judicial order) would be sufficient to lower the threshold for crime prevention measures that are carried out in secret with a possible serious invasion of privacy. This paper examines the balances between the interference of secret surveillance measures and the protection of fundamental human rights, and further analyzes the weight of interference and its constitutional limitations on the protection of fundamental human rights. The study then reviews the relevant legal cases from the Federal Constitutional Court in Germany and addresses supervisory issues and investment regulations in Taiwan. Lastly, it provides suggestions and propose reasonable regulations of surveillance and investigation with the principle of due process of law. |
