Concept and significance of identity verification
Identity verification is an official procedure in which a person’s identity is established or verified. It is one of the standard measures in security and public order law, particularly in police law, administrative offenses, and criminal procedure law. The purpose of identity verification is to unequivocally identify a person, for example, for the prosecution of criminal offenses, administrative offenses, to avert danger, or to enforce further measures.
Legal basis for identity verification
Police law foundations
Identity verification is governed by the police laws of the federal states as well as the Federal Police Act (BPolG). According to Section 163b of the Code of Criminal Procedure (StPO) and analogous provisions of state police laws, the police may establish a person’s identity if facts justify this, for example to avert danger or in the prosecution of criminal offenses and administrative offenses.
Key regulations:
- Section 163b StPO (Identity verification in criminal proceedings)
- Section 22 BPolG (Identity verification by the Federal Police)
- State police laws, e.g., Section 12 PolG NRW
Administrative offenses law
Under the Act on Administrative Offenses (OWiG), the regulation in Section 46 OWiG in conjunction with Section 163b StPO is decisive. Identity verification is necessary here to enforce fines or other sanctions against the responsible person.
Administrative law
Authorities may also establish a person’s identity under general administrative law to ensure the proper conduct of proceedings, for example, as part of registration procedures pursuant to the Federal Registration Act.
Procedure for identity verification
Identity verification is generally carried out by questioning the person and by presenting and checking identification documents (identity card, passport, or similar documents). If no identification documents are presented, other measures are permissible, such as requesting identity data, comparing with police databases, or, if necessary, compulsory escort to the police station.
Measures in identity verification
Obligation to cooperate
Individuals are legally required to cooperate in establishing their identity and to provide the necessary information (Section 111 OWiG, Section 163b StPO). Refusal to cooperate can be punished as an administrative offense.
Coercive measures
If a person refuses to provide information or cannot be identified on the spot, authorities may use coercive measures, such as temporary detention, escort to the police station, or taking into custody (Section 163c StPO, Sections 39 et seq. PolG NRW).
Additional measures
- Searching the person for identification documents
- Questioning witnesses
- Use of technical aids (e.g. fingerprints, photographs in accordance with Section 81b StPO)
Requirements and limits of identity verification
Legal prerequisites
Identity verification may only be carried out if specific legal requirements are met, for example:
- Imminent danger
- Initial suspicion of a criminal offense or administrative offense
- Averting danger
Proportionality
The measure is subject to the principle of proportionality. It must be suitable, necessary, and appropriate. Identity verification must not take place without specific reason or arbitrarily.
Freedom and personal rights
The powers to verify identity do not infringe constitutionally guaranteed fundamental rights, in particular the right to informational self-determination and personal freedom. Interventions in these rights are only permissible on a legal basis and subject to the degree of intervention.
Legal consequences of identity verification
Identity verification is not a punishment but an administrative measure. Its main legal consequence is to enable further official measures, such as the initiation of criminal or administrative fine proceedings, danger prevention, or enforcement of an exclusion order.
Entries from identity verification may be stored in police information systems, for further identification purposes, for search, or to document the course of an operation.
Data protection and storage
Data collected as part of identity verification is subject to data protection law. It may only be stored and processed for the intended purpose. Data subjects are entitled to information, correction, and, if applicable, deletion of their data (see federal and state data protection laws, GDPR).
Special cases of identity verification
Identity verification in cases of greater deprivation of liberty
In particularly serious cases of suspicion, for example with dangerous persons, police law may permit further measures for identity verification, such as taking fingerprints, photographs, or DNA samples (Section 81b StPO).
Identity verification during border area checks
According to the regulations of the BPolG, the Federal Police have extended powers to verify identity in border areas, at train stations, airports, and other security-relevant locations (Sections 22, 23 BPolG).
Legal remedies against identity verification
Affected individuals can seek judicial protection against measures of identity verification. Possible legal remedies include a complaint or challenging the measure in administrative or criminal proceedings, for example, by filing a lawsuit before the administrative courts or by applying for a judicial decision under Section 98 (2) StPO.
Conclusion
Identity verification is a key instrument of state danger prevention, prosecution, and enforcement of order. It is regulated by numerous legal provisions at federal and state level and is subject to strict requirements and limiting provisions relating to data protection and fundamental rights. This measure allows authorities to respond quickly and effectively to legal or factual necessities within the legal framework, while at the same time the legislator guarantees effective protection of the personal rights of those affected and effective legal recourse against unlawful measures.
Frequently asked questions
What is the legal basis authorizing the police to conduct identity verification?
Police in Germany primarily base identity verification on the relevant police laws of the federal states (for example Section 12 PolG NRW) as well as on the Code of Criminal Procedure (Section 163b StPO). Identity verification is permissible when necessary to avert danger, for example to prevent a threat to public safety or order, or when there is suspicion that a person has committed or is about to commit a crime. In criminal procedure, it is sufficient that someone may be considered as a witness or suspect. The Residence Act (Section 48 AufenthG) also regulates identity verification for foreign nationals. The measure must always be proportionate and may only be performed if no less intrusive means are available. Random checks without specific danger or suspicion are generally inadmissible, except for certain hazardous areas.
What obligations do affected persons have during identity verification?
Persons whose identity is being verified are generally required to provide information about themselves, especially name, first name, date of birth, place of birth, current address, and nationality. However, there is no obligation to provide further cooperation, such as disclosing private information beyond the basic identity check. Under Section 111 of the Act on Administrative Offenses (OWiG), refusal to give one’s identity can be punished as an administrative offense. In certain cases, the police may also use direct coercion to establish identity. However, there is no obligation to provide information that could incriminate oneself in criminal proceedings, as the right to remain silent under Article 136 (1) sentence 2 StPO applies.
In which situations may the police use force to establish identity?
If a person refuses to provide their identity or there are doubts about the accuracy of the information provided, the police may take further measures. These include temporary detention for the purpose of identification, searching the person for identification documents, and requiring the person to accompany the police to the station. These measures are set out in the state police laws and the Code of Criminal Procedure (Section 163b para. 1 StPO). The actions must always comply with the principle of proportionality. Physical searches are only permissible if less intrusive means are not available. Moreover, the principle of proportionality requires that the duration of deprivation of liberty be kept as short as possible.
What legal remedies do affected persons have if they consider the identity check unlawful?
Persons who believe that the identity verification was unlawful may subsequently file a so-called declaratory action for continuation before the administrative courts. This is possible because the measure is usually completed before the court can be called upon. In addition, it is possible to file an official complaint about the conduct of the officers. If direct force is used during identity verification or if it results in deprivation of liberty, affected persons can apply for judicial review of the measure afterward, especially for a review under Section 101 StPO or analogously under the police laws. Furthermore, it is possible to assert claims for official liability if a wrongful measure causes damage.
Is it mandatory to present an identity document during identity verification?
There is no general obligation for German citizens aged 16 and over to carry a valid identity card with them at all times; according to Section 1 of the Identity Card Act, they must simply possess an identity card or passport. A duty to carry one generally applies only to specific professional groups or in specially regulated situations. During a police check, however, the police may demand to see an identity document to verify the provided information. If no such document is available, the police are permitted to take other measures to verify identity, such as questioning third parties or comparing information with police databases. If identity cannot be established in this way, temporary escort to the police station or the taking of fingerprints may become necessary.
How long may the police detain someone for identity verification?
The duration of detention for the purpose of identity verification is subject to the principle of proportionality. Detention may only last as long as necessary to establish identity. This is laid down for example in Section 163b StPO as well as in the relevant state police laws. In practice, detention should not generally exceed a few hours. If identity cannot be otherwise established or there is no further reason for custody, the person must be released immediately. Longer detentions, especially those lasting several hours or even days, are only permissible by judicial order and must be specifically justified.
