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11.11.2015

Germany: Court decides police must have a concrete reason in terms of protecting the public before they can check a protestor’s ID

Katrin Welker

The German Constitutional Court has announced that the constitutional justification for the verifying the identity of a protester – by observation or through a request to hand over the identification card – requires a concrete threat to public security and order.

German Constitutional Court in Karlsruhe German Constitutional Court in Karlsruhe (Picture Tobias Helfrich, Karlsruhe bundesverfassungsgericht, CC BY-SA 3.0)

The complainant participated together with a friend in a demonstration at which the police took audio and video recordings of the protesters. The complainant’s friend started to give the impression of taking audio and video recordings of the police officers. Subsequently, both were asked by the police to identify themselves. They followed the police order and handed over their identification cards. Later however, the complainant filed an application against this regulatory action of the police officers. The application was made without success at the Administrative Court (VG Göttingen, 1 A 14/11), as well as at the Higher Administrative Court (OVG Lüneburg, 11 LA 1/13).

 

But the German Constitutional Court with its decision of 24 July 2015 (1 BvR 2501/13),

determined that the police order to identify himself was a violation of the complainant’s fundamental right to informational self-determination protected by Section 2 para. 1, Section 1 para. 1 of the German Constitution (Grundgesetz – GG), and that the violation of his constitutional right could not be justified in that case. The Court recognised that the importance of the encroachment on fundamental rights was relatively low because the identification took place neither secretly nor without any cause. Furthermore, the information which can be collected through an identity verification bears only a limited relevance to the fundamental right of informational self-determination. Nevertheless, the Court stated that any infringement of rights needs a justification.

 

According to German law, only the publication, but not the taking of photographs is a violation of the right to the own image of a person. A possible publication of the video material, and thus, a possible subsequent criminal violation of the police officers’ right to their own image could not justify preventative police measures like the identity checks.

 

If the taking of photographs or video recordings of police officers were to be a sufficient reason for carrying  out policing measures like an identity verification, it would lead to chilling effects. Nobody should have to fear police measures for legal actions. Therefore, a concrete threat is necessary if the police intend to take action because of photographs and video recordings of themselves.

 

Accordingly, in the present case, the court had to determine whether a distribution or public display of the recordings was to be expected, or if this behaviour was only a mere response to the audio and video recordings being made by the police.

Katrin Welker is a research assistant at the Institute for European Media Law, Saarbrücken/Brüssel.


Read more:

The decision is available in English language here.

 





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