Term and Definition: Identification Procedures
Identification procedures are police measures aimed at ascertaining and securing the identity of individuals. They include, in particular, the taking of fingerprints, the production of photographs, as well as the collection of biometric data and the recording of further external features of a person. The legal basis for the implementation of such measures is found in the police laws of the federal states and in criminal procedure law.
Legal Basis in Germany
Criminal Procedure Law (StPO)
The central legal basis for identification procedures in criminal proceedings is Section 81b of the Code of Criminal Procedure (StPO). A distinction is made there between measures for the clarification of a criminal offense and those for the prevention of future criminal offenses:
- Section 81b, Alt. 1 StPO permits the implementation of identification procedures insofar as necessary for the purposes of conducting criminal proceedings. This includes, for example, the documentation of external features to identify the accused in the context of the specific criminal case.
- Section 81b, Alt. 2 StPO also allows for such measures to be ordered for preventive purposes, in particular to be able to identify the person concerned in the event of further offenses.
The measures can be directed against suspects, but under certain conditions also against witnesses or other individuals, if deemed particularly necessary for law enforcement.
Police Law (Preventive Measures)
In police law, the state police laws allow the implementation of identification procedures independently of a criminal proceeding, for example for the prevention of dangers or future crimes. The regulations differ slightly among the federal states but generally have similar requirements and purposes. Typical provisions can be found, for example, in Section 32 of the Federal Police Act (BPolG) and in the relevant sections of the state police laws.
Content and Scope of Identification Procedures
Types of Identification Procedures
Identification procedures can include many different measures. These include, among others:
- Taking of fingerprints
- Taking photographs (portrait and profile images)
- Measuring physical characteristics (for example, height, special body features)
- Collecting biometric data (for example, DNA samples, iris scan)
- Documenting distinctive features such as tattoos, scars, or birthmarks
- Securing traces on clothing and objects
The type and scope of the measures depend on the respective purpose and are determined in the individual case by the responsible authority.
Implementation
Implementation is generally carried out at a police station by authorized personnel. The measures must always be conducted in accordance with the principle of proportionality. Especially in the collection of physical characteristics, which represent an intrusion into personal integrity, the legal requirements and limitations must be observed particularly strictly.
Requirements and Ordering
Suspect Status in Criminal Proceedings
In criminal proceedings, an order requires that the person concerned is considered a suspect. This is usually the case when there are sufficient factual indications of a criminal offense against the person. The measures must also be necessary and suitable to achieve the intended purpose.
Preventive Measures under Police Law
In the field of hazard prevention or for the establishment of identity, the police can order identification procedures regardless of a pending criminal case. A common prerequisite is that identity cannot be established otherwise or only with considerable difficulty, or that a preventive need exists, such as in the case of so-called repeat offenders.
Authority to Order and Appeal
Orders are generally issued by the police themselves. In certain situations, especially for extensive measures, a judicial order may be required (see judicial reservation). Those affected have access to legal remedies against identification procedures; an objection may be lodged, but this generally does not have suspensive effect.
Legal Protection and Limits
Principle of Proportionality
Identification procedures may only ever be carried out to the extent necessary. The police must balance the public interest in law enforcement or hazard prevention against the fundamental rights of the individual, especially the right to informational self-determination.
Data Protection and Deletion
Data obtained from identification procedures are subject to data protection regulations. Storage in police databases is only permitted to the extent and as long as the purposes require. Once the storage purpose ceases to exist, in particular after termination of criminal proceedings without a finding of guilt or after an acquittal, the data must generally be deleted. In certain cases, further retention may be allowed, for example in cases of serious crimes and repeated offenses.
Legal Remedies
There is a right of appeal against the ordering and implementation of identification procedures. Affected persons may have the lawfulness of the measure reviewed by administrative or criminal courts. Upon application, the duration and legality of data storage may also be reviewed.
International Comparison
Other legal systems have comparable regulations, such as the Austrian Security Police Act (SPG) or the Swiss Federal Act on Police Information Systems. The specific design and permissible measures differ in detail, but the objectives of the instruments are largely the same.
Significance and Criticism
Identification procedures are a key instrument in police work for clarifying identity and prevention. However, they are sometimes viewed critically, in particular with regard to the intensity of their intrusion and their practical use for minor offenses. Data protection concerns and the risk of stigmatizing those affected are often at the center of the discussion.
The Federal Constitutional Court has repeatedly emphasized that these measures are not permissible without limitation, but always require strict scrutiny under the principle of proportionality.
Summary:
Identification procedures are legally regulated police measures for establishing identity and preventing future crimes. They are subject to strict requirements regarding ordering, implementation, storage, and data protection. In a state governed by the rule of law, their admissibility always requires respect for fundamental rights and the principles of proportionality.
Frequently Asked Questions
When may identification procedures be ordered by the police?
Identification procedures may only be ordered by the police if this is necessary for the preventive fight against crime or the conduct of criminal proceedings (Section 81b StPO). A distinction must be drawn between preventive and repressive measures: For preventive purposes – for example, to record the identity of a person for future investigations – an order is possible if facts justify the presumption that the person may commit criminal offenses in the future (“hazard prevention”). In the repressive sector – i.e., in connection with a specific offense – the measure may be ordered for the clarification of the present offense and the securing of evidence. In both cases, the measure must be necessary, suitable, and proportionate. The principle of proportionality requires that the measure is not disproportionate to the seriousness of the offense and the suspicion, and that no less severe means are available.
Does an identification procedure require a judicial order?
A judicial order is not absolutely necessary for the implementation of identification procedures. According to Section 81b StPO, these measures may already be ordered in criminal proceedings by the public prosecutor or their investigators (especially police officers). A judicial order is only required if the measure involves a serious interference with fundamental rights—such as compulsory attendance for the collection of identification material. For voluntary and less intrusive measures (such as photographing or fingerprinting), police orders are usually sufficient. Nevertheless, the affected person may request subsequent judicial review, for example by way of complaint.
What data are collected during an identification procedure?
During the identification procedure, various personal data and biometric features are collected. These include, in particular, photographs (face images and, if applicable, images of distinctive features such as tattoos), fingerprints of all ten fingers (sometimes also palm and footprints), and, if applicable, body measurements and other externally recognizable features. More recently, DNA samples under section 81g StPO can also be collected, for which stricter requirements—especially a judicial order—generally apply. The data collected are usually stored in databases such as the Police Information System (INPOL) and are available for identification in the context of future investigations.
How long are the data collected during identification procedures retained?
The duration of storage of identification data is determined by the principle of proportionality and special legal provisions (e.g., Section 81e StPO, Section 44 Federal Data Protection Act, police laws of the states). The decisive factor is whether and when continued storage is still necessary. Upon the legally binding conclusion of criminal proceedings, especially in the event of an acquittal or discontinuation, a review must be conducted to determine whether the stored data are still required. At the latest, when the purposes of data storage – such as clarification or prosecution of future offenses – no longer apply, the data must be deleted. The affected person has the right to a review of necessity and may request deletion; deletion is usually decided by the authority that stores the data.
Do affected persons have the opportunity to challenge identification procedures?
Affected persons may legally challenge the ordering and implementation of identification procedures. Initially, this can be done by lodging an objection or a formal complaint pursuant to Section 304 StPO against the order. The challenge can be filed with the competent public prosecutor’s office or the (local) court. In advance, the affected person may also request access to the files to review the basis of the measure. If there is no remedy, there remains the possibility of bringing administrative proceedings, in particular regarding preventive measures based on state police laws. The effectiveness of the legal remedy depends, among other factors, on whether the measure has already been carried out or is still pending.
Under what circumstances may the police use force to carry out identification procedures?
The use of force to enforce identification procedures is only permissible if the person concerned resists the order or refuses to cooperate. The requirements of the respective provisions on intervention—especially Section 81b StPO or the special legal regulations of the states—as well as the provisions on direct coercion (Sections 70 et seq. StPO or police and regulatory laws) must be complied with. The use of force must be proportionate, meaning it must not be an unreasonable measure and is only permitted if less severe means are not effective. Medical concerns regarding the compulsory application must be taken into account during the assessment of proportionality. For certain interventions, such as the collection of blood samples, a medical procedure is also required.
