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The following abstract was prepared by the Federal Constitutional Court and submitted for publication to the CODICES database maintained by the Venice Commission. Abstracts published by the Venice Commission summarise the facts of the case and key legal considerations of the decision. For further information, please consult the CODICES database.
Please cite the abstract as follows:
Abstract of the German Federal Constitutional Court’s Order of 8 March 2011, 1 BvR 47/05, 1 BvR 142/05 [CODICES]
When referring to the original decision, please follow the suggested form of citation for decisions of the Court.
First Chamber of the First Senate
Order of 8 March 2011
1 BvR 47/05, 1 BvR 142/05

Headnotes (non-official):

A court order declaring that the police may legally hold a person in custody for several hours in order to determine his or her identity might violate Article 2.2 sentence 2 of the Basic Law (freedom of the person) and Article 104.2 of the Basic Law (judicial decision on deprivation of liberty).



Together with a group of approx. 100 persons, the applicants illegally entered a property for the purpose of using it as their new residence and to park several construction trailers. The owner of the property filed a criminal complaint against them. The police thereupon verified the identity of the persons still present on the property and informed them that they were temporarily taken into custody for suspected trespass. The applicants produced valid identity papers both prior to and during the subsequent clearing of the premises by the police. They were initially taken to the police station and later to police headquarters, where each of them was locked up in a separate cell. The applicants spent more than five or, respectively, more than eight hours in police custody for the carrying out of identification procedures consisting of the taking of two or, respectively, three photos.

The applicants' motions for declarations that the reason, length and implementation of their deprivation of liberty were illegal were unsuccessful already before the Local Court (Amtsgericht) and on appeal to the Regional Court (Landgericht). The courts held on the basis of § 163b.1 sentence 2 of the Criminal Procedure Code (Strafprozessordnung, hereinafter: the Code) that the applicants' detention for the purpose of determining their identity was at least legal up until they presented their identity cards. Pursuant to that provision, a suspect may be detained if it would otherwise not be possible or would only be possible with severe difficulties to establish his or her identity. The courts further held that § 81b of the Code constitutes the legal foundation for subsequently taking a suspect to a police station to take photos. This provision authorises the police to take photos of the accused, even against his or her will, insofar as this is necessary for the purpose of conducting criminal proceedings or identification procedures. According to the courts, it was important for the authorities to have a record of the applicants' appearance at that time in order to be able to produce clear evidence in court. The reason why the applicants were held in custody for such a long time was that the police had to take the particulars of a multitude of persons. According to the courts, this did not amount to a deprivation of liberty.

The Federal Constitutional Court decided that the orders of the regular courts violated the applicants' fundamental right of freedom of the person in Article 2.2 sentence 2 of the Basic Law to the extent that such orders declared the action taken by the police even after they had been shown and had examined the applicants' identity papers to be lawful. The Federal Constitutional Court thus reversed the challenged decisions and remitted the matters to the Regional Court and Local Court respectively.

In light of the significance of the fundamental right to freedom of the person, the orders of the regular courts do not satisfy the requirements arising from the constitutional principle of proportionality. The reason for this is that the police measures that were declared legal by the regular courts, irrespective of the legal basis that was used for doing so, have not been necessary for reaching the desired purpose.

§ 163b.1 sentence 2 of the Code gives the permission to hold a person in custody for the purpose of establishing his or her identity only if the identity cannot be established or only with severe difficulties. As a reflection of the constitutional proportionality requirement, the provision ensures that an interference with personal freedom only occurs where this is essential for establishing the identity. That was not the case here. The applicants produced their identity papers upon their arrest. There is nothing to suggest that the applicants' papers were fake or that the identity cards they were not their own. Accordingly, it can be assumed that the police officers could have determined the applicants' identity with sufficient certainty at the scene of arrest; this is especially so since under constitutional law simply determining a person's identity should be the rule and his or her further detention should be the exception invoked where this is necessary to establish the identity. Detaining them for purely practical reasons cannot justify the measure at issue.

In addition, detaining the applicants on the basis of § 81b of the Code was disproportionate. Even if one assumes that, in spite of the fact that the identity of the applicants had been clearly determined, there was no adequate guarantee that individual police officers giving evidence in court would be able to remember the applicants without photos due to the large number of persons at the scene and that there was therefore a need for additional memory aids, this does not justify detaining and locking them up for hours. It is true at least in the case of sufficiently serious crimes that the number of cases to be processed can justify a moderate waiting period, which is organisationally unavoidable, as well as taking suspects to other police stations to carry out of identification procedures. However, in the present case the applicants had to wait for several hours for the identification procedures to be carried out and these measures only involved taking a few simple photos. Therefore, in applying the proportionality principle the courts should have considered more carefully whether other less intrusive but similarly effective measures could have been taken, such as photographing the applicants at the scene when they were led out individually to determine their identity; this should have been considered before assuming that holding them in custody for several hours was justified.

Moreover, the challenged decisions violate the applicants’ right under Article 104.2 of the Basic Law, which is equivalent to a fundamental right. Accordingly, taking a decision as regards the permissibility and duration of a deprivation of liberty is a matter that is left to a judge. Such a judicial decision must be made at the latest immediately after the deprivation of liberty has begun. Taking the applicants to detention cells and locking them up in these cells amounts to a deprivation of liberty within the meaning of Article 104.2 of the Basic Law and does not merely amount to a restriction of their liberty. Unlike in the normal case of § 81b of the Code, the applicants were not just taken to the police station and immediately subjected to identification procedures, but instead held alone for several hours. In view of the necessary classification of the measure as a deprivation of liberty, the regular courts should have considered the question of the necessity of obtaining a judicial decision, the organisational steps taken for doing so and the measures in each individual case.

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