Identification service treatment

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The taking of fingerprints is part of the identification service treatment
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An identification service treatment (or identification service measure ) is the collection of personal and biometric data of a person by the police. A fingerprinting procedures is performed usually after an arrest for an offense on a person, but also preventive, as well as by the immigration authorities in the context of asylum procedures . It can also be used to establish identity.

As a rule, the following data from the data subject is collected (depending on the jurisdiction and partly on the occasion):

Germany

This article or paragraph presents the situation in Germany . Help us to describe the situation in other countries.

In Germany it is abbreviated to ED treatment .

The inclusion of biometric data, as has been mandatory since November 2005 when issuing a passport , is not an ED treatment because all of the applicant's data is already known and the person is certain.

Identity measures can also be enforced against the will of the person concerned with direct coercion . The deletion of the data can be requested ten years after the detection.

Legal basis

Section 81b StPO

With the identification service treatment (ED treatment) a distinction is to be made between § 81b 1st alt. StPO (to conduct criminal proceedings) and § 81b 2nd alt. StPO (for the purpose of the identification service, i.e. as a preventive measure). While the first alternative can also be carried out against the will of the accused in criminal proceedings because the ED documents are required for the current proceedings, the second alternative has a so-called police preventive character. In this case, the accused has a prior right to be heard and a right to object to the police order, since it involves administrative acts. If the authority orders immediate execution because, from their point of view, the public interest in collecting the data outweighs the interest of the individual in protecting his or her right to informational self-determination ( Section 80 (2) No. 4 VwGO ), then the accused can exercise suspensive effect Restore legal remedies only in court ( Section 80 (5) sentences 1 and 2 VwGO). The ED treatment according to § 81b 2nd alt. StPO (for the purpose of the identification service) requires a corresponding prognosis, according to which there is a risk that the accused will commit further (not necessarily the same) criminal offenses and the investigation of these future offenses will be facilitated by the identification service documents. The prognosis of the risk of repetition includes the assessment of the individual case, in particular statements about the severity (e.g. dangerous bodily harm ), the type of offense (e.g. drug offense), the type of commission (e.g. particularly brutal execution), the personality of the perpetrator (e.g. violently under the influence of alcohol) and the temporal proximity of various offenses accused of the accused (but the first-time perpetrator can also be investigated if he is accused of a sexual offense). However, these criteria are only established case law of the administrative courts.
In police practice, the criteria are interpreted generously; H. there is often an unjustified assumption of an unfavorable prognosis. The accused is told that if he refused, ED treatment would be forcible. However, this first requires an order from the police, against which an objection can be lodged. The opinion that the summons to ED treatment according to § 81b Alt. 2 StPO can only be carried out by the criminal police and not by the police service, is based on the cited judgment (from 1972) and is outdated. The order can also be made by the police. (A court order is only necessary if an objection has been lodged ().). So there is no disadvantage if you reject an ED measure immediately after the arrest and ask for legal assistance. The authority must then be able to justify why which measures (fingerprint, three-sided image, description of the person, etc.) will facilitate future criminal prosecution in individual cases.

According to § 81b (1st and 2nd alternative) StPO, identification measures can only be taken against an accused i. S. d. StPO are carried out, generally excluding children, but also people against whom no preliminary investigation has (yet) been opened. The state police laws, however, do not have this restriction. Accordingly, an identification service measure can be carried out on the person concerned (not: the accused!) If a reliable identification cannot be carried out in any other way or if this is necessary for the preventive fight against criminal offenses because the person concerned is suspected of having committed a criminal offense, and the circumstances of the individual case justify the assumption that he will commit a criminal offense in the future (cf. § 36 PolG BaWü). Anyone can be affected, criminal responsibility or a criminal investigation against him is irrelevant.

Orders for the identification service treatment based on the Police Act are administrative files i. S. v. 35 sentence 1 VwVfG , since the authority obliges the accused to tolerate the identification service measure and thus makes an individual rule and, if necessary, determines its content. In accordance with the principle that federal law violates state law, the state police regulations for preventive ED treatment only apply if § 81b 2nd alt. StPO does not apply (mostly delinquent children who are not criminally responsible). The usual legal remedies against administrative acts (objection, action for rescission , action for a continuation of a declaratory judgment , provisional legal protection) are permissible against the order to have an identification service carried out .

Orders for identification service treatment according to the Code of Criminal Procedure are not administrative acts i. S. v. Section 35 sentence 1 VwVfG. Measures according to the 1st alternative (execution of criminal proceedings) describes criminal procedural law in the narrower sense. The competent authority is generally the public prosecutor's office, as a criminal offense has preceded it. Measures according to the 2nd alternative (identification service) are considered criminal procedure law in the broadest sense. Contrary to popular belief, the second alternative does not constitute material police law and also has no preventive character. Rather, it is about ensuring the facilitation of future criminal proceedings in individual cases justified by prognosis by the police enforcement service (PVD). This is also known as criminal justice. According to the case law of the Federal Administrative Court, the administrative judicial process and - unlike otherwise for measures under the StPO - the legal process to the ordinary courts (according to Section 23 (1) EGGVG) is not opened against the order.

Identification service data obtained on the basis of the first alternative of Section 81b of the Code of Criminal Procedure may not be stored longer than is necessary to investigate the crime. If the purpose - criminal prosecution - no longer applies, for example because the public prosecutor's investigation has been completed, the identification data must be deleted again. The police can proceed quite differently with data collected from the accused according to the second alternative. These can be stored for an indefinite period of time, even if the accused has long since lost their status, e.g. by discontinuing the investigation or by acquittal. According to the highest court rulings, the law enforcement authorities are allowed to maintain the data permanently in their files, since the original prognosis about the person treated for identification does not become obsolete simply because the person has lost his accused status. Once the risk of repetition has been affirmed, it will usually take effect after the end of the procedure. The exception is the clear acquittal of the accused by the court, provided that all suspicions have been dispelled.

Section 163b StPO

According to Section 163b of the Code of Criminal Procedure, identification of a suspect may be determined if the identity cannot be determined otherwise or only with considerable difficulty.

Section 49 of the Residence Act

According to § 49 AufenthG , foreigners can be treated with identification services if

  • they have entered Germany without permission , have not applied for asylum and cannot be immediately taken into custody for deportation or deported ( Section 15a AufentG in conjunction with Section 49 subs. 4 AufenthG)
  • they want to enter or have entered the country with a forged or falsified passport or passport substitute
  • other indications give rise to the suspicion that the foreigner intends to re-enter federal territory without permission after being rejected or terminated
  • they are enforceably required to leave the country, provided that the removal or deportation is possible
  • a national visa is applied for
  • they are refused or pushed back to a third country named in Section 26a (2) of the Asylum Act
  • temporary protection is granted in accordance with Section 24 of the Residence Act and in the cases of Section 23 and Section 29 subsection 3 of the Residence Act
  • a reason for refusal according to § 5 Abs. 4 AufenthG has been determined.

§ 16 AsylG

According to § 16 AsylG, the identity of a foreigner who applies for asylum must be secured by means of identification services. Only people under the age of 14 (children) are exempt from this rule.

Only photographs (photos) and fingerprints of all ten fingers are taken. These are transmitted to the Federal Criminal Police Office and compared with the automated fingerprint identification system (AFIS) of the German police at the national level and the fingerprint identification system EURODAC at the European level. In this way, multiple identities and multiple asylum applications are to be recognized. For the consequences of the asylum procedure, see also: Identity determination in German aliens law .

Police law (e.g. HSOG, BpolG, PolG NRW)

According to German police law of the federal states and the federal government, identification services can also be carried out to establish identity within the framework of police law (e.g. § 18 HSOG - identification and checking of authorization certificates) or to prevent criminal offenses. In contrast to the law of criminal procedure ( § 81b StPO), according to police law, persons who are not of age (children, etc.) can also be identified for the preventive fight against crime.

Sections 4 and 6 of the Passport Act (PassG)

To issue a biometric passport, flat prints of the left and right index fingers of the passport applicant are taken and stored in the passport ( Section 4 , Section 6 of the Passport Act ).

Section 86 Prison Act (StVollzG)

Various ED measures are permitted in the prison system ( Section 86 StVollzG ).

Additional information

Web links

Commons : Mug shots  - Collection of images, videos and audio files

Individual evidence

  1. ↑ Canton of Zurich, 551.112, Ordinance on the Identification Service Treatment of Persons , Art. 4, Para. E [1]
  2. ↑ a b c BVerwG, judgment of November 23, 2005 , Az. 6 C 2.05, full text
  3. ↑ BVerwG, judgment of October 19, 1982, Az. 1 C 29.79, BVerwGE 66, 192, 199.
  4. ↑ OVG Münster NJW 72, 2147 Notes on identification service treatment, Odebralski law firm, accessed in May 2016
  5. ↑ OLG Hamm I-15 W 131/12
  6. ↑ Notes on the identification service treatment, law firm Ferner, accessed in May 2016
  7. ↑ Information on "behavior and rights" on the page of "Blau Weiß Rote Hilfe", accessed in May 2016
  8. ↑ Information on dealing with the police on the "Blau Weiß Rote Hilfe" website, accessed in May 2016
  9. ↑ BVerwG, decision of May 18, 2011 - 6 B 1/11 ( website BVerwG )
  10. ↑ a b BVerfG, decision of 16 May 2002 , Az. 1 BvR 2257/01, full text, Rn. 9-11.
  11. ↑ The German asylum procedure - explained in detail. Responsibilities, procedures, statistics, legal consequences. BAMF, October 2015, accessed on July 21, 2016 . P. 8.
  12. ↑ Konrad Schober: European police cooperation. Heidelberg 2017, ISBN 978-3-8114-4258-0 , p. 229 (footnote 651 ).
  13. ↑ Facts and figures on AFIS. ( Memento of the original from April 5, 2017 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. Federal Criminal Police Office (Germany) (BKA), 19. May 2003 @1@ 2Template: Webachiv / IABot / www.bka.de
  14. ↑ The German asylum procedure - explained in detail. Responsibilities, procedures, statistics, legal consequences. BAMF, October 2015, accessed on July 21, 2016 . Pp. 14-15.
  15. ↑ § 19 HSOG at lexakt: § 19 HSOG , as of September 10, 2008
  16. ↑ § 24 BPolG at juris: § 24 BPolG , as of September 10, 2008

literature

  • Sönke Gerhold / Wiebke Rakoschek: Identification service measures for the preventive fight against criminal offenses according to § 81 b 2nd alt. StPO in the administrative law exam, JURA 2008, 895 ff.