Identification careless
At a demonstration by Greenpeace and Extinction Rebellion at a secure part of Schiphol Airport, some 400 protesters were detained by the Royal Military Police (KMar) on November 5, 2022. On January 12, 2024, the Public Prosecutor's Office (OM) ruled that the legally required identification upon arrest had been careless (1). The accuracy of the identification of 64 persons can no longer be determined. It is therefore possible that the identification in those cases is incorrect. In 9 cases it is established that the identification is incorrect or questionable. In recent years, such mass arrests were more frequent (2). In those cases, up to 1,600 people were arrested by the police at the same time.
How did the KMar identify the protesters?
Most of the protesters did not cooperate with legally required identification, or had taken measures to prevent identification. They would not give their personal details, did not carry identification, or had processed their fingertips so that fingerprints could not be taken. In doing so, the KMar had limited time under the law to establish their identities (3). However, they did manage to take a facial photograph of the detained protesters. Afterwards, the KMar attempted to identify the demonstrators using, among other things, that facial photo and facial recognition software, other police information, and comparison with photos from open sources, such as social media. Fingerprints were also used.
Falsely identified as suspect
A number of arrested and identified persons received a warning letter from the prosecutor's office. This stated that they were present at the demonstration and committed a crime. That turned out not to be true in all cases. Eight accused said they were somewhere else that day. To seven persons, the prosecutor apologized because after investigation it turned out that they were wrongly classified as suspects. The investigation into the eighth person is ongoing.
Why is careful identification important?
Being identified as a suspect, without having actually been involved in crimes, can have a tremendous impact on people. However, careful identification in law enforcement also serves other purposes, such as having certainty about the identity of a witness, preventing deputies from serving a prison sentence for someone else, and being able to act against criminal conduct by individuals hiding behind a pseudonym online.
But what exactly is identification?
The regulations do not define identification, but from regulations and use of the term in practice, I believe it should be inferred that it involves comparing, on the one hand, characteristics of a person with, on the other hand, data about that person, determining with a certain degree of reliability which uniquely identifiable person it is.
If these data are contained in an identity document that a person carries and this is shown on demand to, for example, a police officer, a comparison of the passport photo in the identity document with the face of the person follows. If these match sufficiently, it is assumed that the identity document belongs to this person and - at least for this purpose (4) - the identity has been established with sufficient reliability.
Identification infringes on personal privacy. The legislature indicated that it considers this a relatively minor intrusion in relation to the extent to which the duty to show contributes to law enforcement (5). Up to this point - the investigating officer is given the proof of identity for inspection, but does not yet record any data - identification does not yet qualify as personal data processing. However, if the official, in response to the identification, searches for example in police systems for data about the identified person, or records identifying data, then of course this does constitute processing of personal data. If this recording takes place in the context of criminal law enforcement (and not, for example, administrative law supervision), then it is police data as referred to in the Police Data Act.
Who may demand access to an identity document in what cases?
A generally applicable power to demand inspection of an identity document shall be given, to the extent reasonably necessary to perform the duty, to:
the police officer and the soldier of the Royal Marechaussee assigned to perform police duties (art. 8, paragraph 1, Police Act 2012),
the special investigating officer (Art. 8(2), Police Act 2012),
the military providing assistance to the police (Art. 8(3), Police Act 2012),
the investigating officer (Art. 6a Special Investigation Services Act),
the tax and customs inspector appointed by the Minister of Finance (art. 47 General Law on State Taxes and art. 1:34 General Customs Law), and
the supervisor (Art. 5:16a and 5:13 General Administrative Law Act).
Anyone who has reached the age of fourteen is obliged to present proof of identity at the first request of the aforementioned officials (Art. 2, Compulsory Identification Act). The term 'demand' implies that it must be clear to the person concerned that there is a demand. Merely requesting inspection may be insufficient (6). The passport, the identity card, some other travel documents and the driving license qualify as proof of identity, provided they have been issued by a country within the European Economic Area (Art. 1 of the Compulsory Identification Act). The identifying documents a foreign national must have pursuant to the Aliens Act 2000 also qualify as proof of identity.
In public transport, the obligation to show proof also applies to a passenger who has not yet reached the age of fourteen (art. 92 Passenger Transport Act 2000). Moreover, in public transport, the circle of persons who can demand inspection is wider: the Minister of Infrastructure and the Environment and also the carrier can appoint persons authorized to do so (art. 87 and 89 Passenger Transport Act 2000). Inspection cannot be demanded of persons under the age of 12 in the context of criminal law enforcement (art. 486 Code of Criminal Procedure). After all, persons under 12 years of age cannot be criminally prosecuted.
Inspection can therefore not only be demanded from a suspect, but also from anyone else. The requirement is that inspection is reasonably necessary for the performance of the police, investigative or supervisory task. In these cases, inspection may therefore also be demanded of others, such as witnesses and victims. Where the performance of police duties is concerned, inspection may also be demanded of persons in the context of a disturbance of public order and in the context of providing assistance to persons in need (7).
What happens if the person does not show proof of identity?
Those who fail to comply with the obligation to present proof of identity for inspection may be fined €100 (art. 447e Penal Code). This amounts to half for 14- and 15-year-olds (8). For a fine, however, it must be possible to establish the identity. To this end, the suspect may be arrested in order to then be subjected to further identification measures at the police station (pursuant to art. 27a, 55b and 55c Code of Criminal Procedure). These include, in particular:
ask for surname, given names, place and date of birth, the address at which the person is registered in the basic registration of persons and the address of actual residence,
examination of an identity document (to this end, for example, the suspect may ask someone to bring it to the station), and
examination of clothing and items carried by the individual to the extent necessary to establish identity.
Whether arrest and further identification measures (coercive measures) are appropriate depends on the circumstances. The reason for the demand for inspection plays an important role in this regard: does it concern a more serious criminal offense? If the identity of the suspect can be established by other means, the application of the coercive measures referred to may be dispensed with, but a mere check of name and address details is not sufficient (9). Consideration could be given to checking data in the driving license register, which also contains a passport photo that can be compared to the face of the person concerned, but not every suspect appears in the driving license register (10). In the official report it should be possible to find out what was done to find out the identity.
The inability to identify individuals during the climate demonstration at Schiphol Airport is problematic for all of us. It undermines trust in law enforcement and can lead to a sense of arbitrariness and injustice. This directly affects the perception of security and justice in society. Moreover, it can reinforce the fear of privacy violation if subsequent identification attempts are made using databases and technology, which also proves to be error-prone.
This incident demonstrates one of the challenges for identification in law enforcement. Extraordinary investigating officers in public spaces and on public transport are confronted with this on a daily basis by urinating in public places, leaving garbage where or when this is not allowed, minors with alcohol or narcotics, undeclared drivers on public transport, and persons unauthorized in station halls and the like. The coming years will have to prove the effectiveness of the recently taken steps to give special investigating officers employed by private employers access to the driver's license register and the BRP (11).
But identification in law enforcement faces further challenges. The question is whether the current powers of identification in law enforcement are still adequate in these times of increased civil unrest (12) and online driven public order disturbances (13). This raises the question of which powers are necessary to deal with online incited public order disturbances, for example, when it comes to individuals who hide behind a pseudonym online and incite mass public order disturbances. Can identification contribute, is identification on social media platforms effectively possible, under what safeguards can this be done more carefully than at Schiphol Airport in 2022? And, what, if any, new powers of identification are needed for this purpose?
(1) https://www.om.nl/actueel/nieuws/2024/01/12/uitkomst-nader-onderzoek-identificatie-klimaatdemonstranten-schiphol
(2) At Extinction Rebellion demonstrations: on February 3, 2023 on the A12 in The Hague 1,000 detentions, on December 30, 2023 on the A10 in Amsterdam 400 detentions, on May 27, 2023 on the A12 in The Hague nearly 1,600 detentions. Soccer fans: on December 15, 2023 in Amsterdam nearly 150 detentions, on June 21, 2020 in The Hague over 400 detentions. Corona protests: on March 20, 2021 on the Museumplein in Amsterdam 58 detentions.
(3) An arrested suspect may be held for 6 to 9 hours (depending on the offense) for investigation. The investigation includes the identification of the suspect. See Article 56a, paragraphs 1, 2 and 4 of the Code of Criminal Procedure.
(4) The identification of the suspect by the investigating officer will be discussed later. Other forms of identification in the criminal justice chain, such as using fingerprints, photographs and DNA (taken) after arrest, I leave out of consideration here.
(5) Parliamentary Papers II 2003/04, 29218, 3, p. 2-3; Parliamentary Papers I 2003/04, 29218, C, p. 2-3.
(6) Rb. Amsterdam Aug. 11, 2009, ECLI:NL:RBAMS:2009:BJ5573; Rb. Amsterdam Nov. 3, 2010, ECLI:NL:RBAMS:2010:BO8474; Rb. Zwolle Nov. 16, 2009, ECLI:NL:RBZLY:2009:BL3978.
(7) This is embedded in the concept of "police task" (Art. 3 Police Act 2012). The legislator emphasizes this again in Parliamentary Papers II 2003/04, 29218, 3, p. 11.
(8) See the Prosecutor's Office Penalty Database (https://boetebase.om.nl), offense code D517.
(9) See also "Instruction on Compulsory Identification on the Exercise of Powers under the Compulsory Identification Act," Government Gazette 2016, 70055.
(10) "Multi-year policy agenda for boas," p. 7, appendix to Parliamentary Papers II 2022/23, 29628, 1099
(11) Ibidem and Annex 4 to the Decree on Basic Registration of Persons. See also Stb. 2021, 7 (Explanatory Memorandum).
(12) See also: https://www.nctv.nl/onderwerpen/maatschappelijke-onrust and https://www.weerbaarbestuur.nl/producten-en-diensten/ondersteuningsnetwerk-maatschappelijke-onrust.
(13) Parliamentary Papers II 2022/23, 29628, 1174, p. 4; Parliamentary Papers II 2023/24, 28684, 732 and 726
(14) Parliamentary Papers II 2023/24, 28684, 726 and 732.
