Identification (law)
The identification process (IDF for short) describes on the one hand a measure taken by an authorized official against a person. The citizen reveals his identity ( personal details ) to the authority, this can be done on a voluntary or involuntary basis.
As a rule, this is done as part of a personal or vehicle control . Identity is usually established by means of identification documents, for example a driver's license or an identity card, depending on the situation.
On the other hand, the term identification is used to denote the legitimation of persons in banking, insurance or reporting law. In this case, the recipient of the personal information is not necessarily an official, the disclosure of the personal information is usually voluntary.
In this case, the determination is usually based on the conclusion of a contract . Legitimation by presenting an identity card or passport is not always sufficient; in some cases, additional documents are required.
Identity determination in criminal / administrative offense procedural law and police law
Identity determination according to the Criminal Procedure Code and the Law on Administrative Offenses
In Section 163b (1) of the Code of Criminal Procedure, the Code of Criminal Procedure states that the public prosecutor's office or police officers can take the measures necessary to establish an identity, stating the reason (an underlying criminal offense or administrative offense). According to Section 111 OWiG, the person concerned must provide truthful information about their surname, first name, date and place of birth, as well as their current place of residence. As a rule, the surrender of the identity card is sufficient; in individual cases, further proof of identity may be required.
According to the law on administrative offenses , the establishment of identity can also be carried out in the case of traffic or other administrative offenses . Here, the framework conditions are also based on the Code of Criminal Procedure (StPO) and the guidelines mentioned above.
According to Section 163b (2) of the Code of Criminal Procedure, the identity of persons who are not suspected of a criminal offense can also be determined if and to the extent that this is important for the investigation of the criminal offense. Usually this is the witness or the injured party .
The person concerned must be informed of the person and the subject ( legal basis ) against whom the criminal proceedings are directed. A detention of the person is linked here at much higher hurdles, usually it is in the interest of the witness or victim, his personal indicate to the authority. A search of the person or the objects carried in order to establish identity as well as an identification service treatment is also possible against the will of the accused, a judicial order is not required. In the case of the witness, this is only possible with their consent. Further possibilities for the establishment of the truth by witnesses result from the judicially ordered joint detention (up to six months).
These regulations also apply accordingly in the area of administrative offenses due to the transformation regulation of Section 46 OWiG .
Identity determination to avert danger
Every state police force , the federal police force , the Federal Criminal Police Office and the Federal Customs Administration have anchored in their police laws a power that enables them to carry out an identity check in order to avert danger . An example of this is the identification of a confused person in order to bring them back to a safe environment, ie care .
There are a myriad of individual requirements as to when exactly a person's identity is permitted; these differ in the exact legal situation from state to state.
In all federal states, the police can determine the identity of a person
- to ward off a danger
- if the person is in a place where, on the basis of factual evidence, it can be assumed that people are meeting, preparing or committing criminal offenses there, meeting people without the required residence permit , hiding offenders or where people are engaged in prostitution (so-called dangerous place ) ,
- if they are in a traffic, supply system, facility, public transport system, official building, another particularly endangered object or in the immediate vicinity thereof and facts justify the assumption that criminal offenses are to be committed in or on objects of this type by the People in or on these objects or these objects themselves are in immediate danger,
- at a checkpoint set up by the police
- in border areas up to a depth of 30 kilometers and on thoroughfares ( federal motorways , European roads and other roads of considerable importance for cross-border traffic) and in public facilities for international traffic to prevent or prevent unauthorized crossing of the national border or unauthorized stay and to combat it cross-border crime or
- to protect private rights .
If a person is asked to verify their identity, they are obliged to provide their personal details and, if they have identification papers with them, to hand them over for verification. A detention of the person can be ordered if the identity cannot be determined in any other way or only with considerable difficulty. In this case, a search of the person and the objects carried is also possible. In this case, detention can last until the end of the next day, depending on the court order.
Violation of the police identity check
If the personal details are not surrendered, a search of the person and their belongings is permitted. Furthermore, in this case the person can also be treated with identification services. In this case, the person will be detained . This detention requires a court order . If no judicial order can be obtained, detention may be extended until the end of the following day. In order to carry out the measures mentioned , the police are entitled to use direct coercion , provided this is possible while maintaining the principle of proportionality.
If an accused remains anonymous despite these measures, there is sometimes - depending on the offense - the reason for imprisonment of the risk of escape. The accused can accordingly in custody be taken. Detention cannot be averted by providing a security . However, proportionality must be checked.
In unexplained identity of a person takes place, a person detection method , wherein, among other things, the BKA is integrated.
In addition to the above-mentioned possibilities of deprivation of liberty under the Code of Criminal Procedure or the corresponding police law or the search or the implementation of identification measures , the refusal to provide his personal details also represents an administrative offense according to § 111 OWiG.
Identity determination in banking, insurance and reporting law
Verification of legitimacy in banking and insurance
The legitimation check is a procedure to prevent money laundering .
Every customer is obliged to identify himself to the bank with official papers, provided he has accounts or securities accounts for other accounts , rents safe deposit boxes or manages assets. In this case, the duty of identification is based on the tax code and the Money Laundering Act (GwG).
Private individuals usually identify themselves by means of an identity card or passport with a confirmation of registration . For legal entities , an extract from the commercial register , association register , cooperative register , partnership register at the respective local court or the foundation register at the state or the administrative district serves as proof .
In certain cases, policyholders are also required to carry out the legally required verification of legitimation if the current premium per year or the single premium or the payment into the premium deposit exceeds EUR 2,500. Owners of dynamic contracts are generally to be identified.
In certain cases, the identification of personal details can also be carried out impersonally using the so-called Postident procedure .
Residence verification
To determine the place of residence , it is mandatory in some federal states that a residence check is carried out. This checks whether a given home address is actually correct. Specifically, it is checked whether the name is written on the doorbell, on the mailbox and on the door plate. It is also checked whether the person is keeping everyday items (clothing, drugstore items, etc.) as well as documents or photos, etc. in the apartment. In addition, respondents such as neighbors or family members can be asked about their place of residence. Registration according to the Registration Act, which can be accessed online via the data of the registration office , also serves as official evidence .
Determination of identity in immigration law
The Residence Act and Asylum Act provide for a determination of identity and the like in alien and asylum law proceedings . a. when applying for asylum in Germany , issuing residence permits and in the context of expulsion or deportation . See in particular § 49 AufenthG and § 16 AsylG.
A foreigner who does not have a valid passport or passport substitute is obliged, according to Section 48 , Paragraphs 3 and 3a of the Residence, to participate in the procurement of the identity paper and to hand over the corresponding certificates, other documents and data carriers. With effect from August 1, 2015, information can be obtained from telecommunications services under certain circumstances in accordance with Section 48a .
Right of asylum
According to § 16 AsylG, the Federal Office is obliged to determine the identity of the asylum seeker. Asylum seekers who are 14 years of age or older should, among other things , be treated with identification services ( see also: Article “Refugee crisis in Germany from 2015”, section “Distribution and registration of asylum seekers” ).
According to § 15 AsylG, the asylum seeker is obliged to assist in establishing his identity and in obtaining a passport. Establishing identity is often problematic, especially when applicants do not want to disclose their identity, by which they are known in their country of origin, for well-founded fears or for other reasons.
Incorrect or incomplete information when applying for asylum has serious consequences; the asylum application is then " obviously unfounded " according to Section 30 (2) AsylG .
Voluntary surrender of personal details
A distinction must be made between the options for establishing identity already listed and the voluntary disclosure of personal details. This usually takes place where a private individual concludes a contract with another person or a company, for example.
In this case, the handover takes place on the basis of the conditions on which the contract is based. In no case does one of the two sides have to provide personal data in advance. This authority is reserved for public officials only.
Provisional arrest as "everyone's right"
If a person is provisionally arrested by another person in accordance with Section 127 (1) of the Code of Criminal Procedure (StPO) because he or she is directly suspected of a criminal offense (“in the act”), he or she can end the deprivation of liberty by voluntarily providing personal details , because then this is usually the reason for the preliminary arrest no longer applies. Again, there is no right to force the person to surrender the personal details, this is only possible through the police or the public prosecutor's office. If a person does not provide any personal details to an official and / or cannot identify himself / herself, a person identification procedure is used.
See also
Individual evidence
- ↑ Measures and challenges in establishing identity in the context of the asylum procedure and in the event of deportations. (No longer available online.) Federal Office for Migration and Refugees and European Migration Network, February 14, 2013, archived from the original on June 30, 2015 ; Retrieved April 29, 2013 . 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.
