Identification Processing (Section 81b StPO)

Identification processing – fingerprints, police photographs and body measurements – is one of the measures clients find hardest to shake off: the data goes into police systems and can remain stored there for years, regardless of how the criminal case itself ends. The legal basis is Section 81b of the German Code of Criminal Procedure (StPO), and the measures may expressly be carried out against the will of the accused.

What identification processing involves

What is recorded are external characteristics: ten-finger and palm prints, photographs from the front, in profile and full body, a personal description, and distinguishing features such as tattoos, scars or birthmarks, along with measurements. The data is fed into police information systems and remains available there for comparison.

Two variants – and why the difference decides everything

Section 81b(1) StPO names two distinct purposes, and almost everything else follows from which one applies:

• Variant 1 – for the pending criminal proceedings: the measure serves to investigate the specific allegation currently under examination, for example to obtain a photograph for an identification line-up or to match traces found at the scene.
• Variant 2 – for identification service purposes: this is not about the current case at all, but about future investigations. The police act preventively, relying on a forecast that the person concerned may come to attention again.

A note on citation: since Section 81b StPO was expanded by further subsections, the precise reference is Section 81b(1) variant 1 or variant 2 StPO. Case law and commentary still frequently use the older short form; the meaning is the same.

Which variant the police invoke determines the avenue of appeal, the retention period and the requirements for deletion. If the order does not state this clearly, that is the first point we clarify.

Which measures are permitted – and which are not

Section 81b StPO covers external findings. Physical interventions are not included:

• Blood samples and comparable interventions are governed by Section 81a StPO and are subject to their own, stricter requirements.
• DNA identity determination for future proceedings is governed by Section 81g StPO – it is not identification processing within the meaning of Section 81b StPO.
• Measures solely to establish identity are based on Section 163b StPO.

Where a measure is based on the wrong provision, it is open to challenge. That makes close scrutiny of the order worthwhile.

Every individual measure must be necessary

The Federal Constitutional Court has markedly tightened the requirements. In its decision of 29 July 2022 (2 BvR 54/22), it upheld a constitutional complaint: ordering finger and palm prints together with several photographs violated the right to informational self-determination (Article 2(1) in conjunction with Article 1(1) of the Basic Law).

The decisive point is that under variant 1, each individual measure must be necessary for the specific proceedings. Ordering a blanket package – prints, full-body photograph, special shots, personal description – does not meet that standard. Having this reviewed often produces strong arguments.

Do you have to cooperate?

There is a duty to tolerate the measure. It may, if necessary, be enforced by direct physical compulsion, although that compulsion must remain proportionate. Physically resisting is therefore not a sensible course: it can create criminal liability of its own and worsens your position.

Your right to remain silent is unaffected: identification processing does not oblige you to say anything about the allegation. The situation is often used to strike up a casual conversation. Stay polite, but say nothing about the substance of the case.

Legal remedies: choosing the right route

Here the distinction has immediate consequences, and challenging the measure by the wrong route costs time:

• Variant 1 (criminal proceedings): the ordinary criminal courts have jurisdiction. The route is an application for a judicial decision by analogous application of Section 98(2) sentence 2 StPO to the investigating judge.
• Variant 2 (identification service): the order is an administrative act. Objection proceedings and an action for annulment before the administrative court are available. Where immediate enforcement has been ordered, interim relief under Section 80(5) of the Code of Administrative Court Procedure comes into play – and then days matter.

Even once the measure has been carried out, pursuing a remedy remains worthwhile: a finding that it was unlawful is the lever for having the records destroyed.

Deletion and destruction of the records

An acquittal or a discontinuation does not automatically cause preventively stored records to disappear. The authority makes its own assessment of whether a risk of repetition still exists. Those who do nothing risk their prints and photographs remaining retrievable for years.

• Data from the criminal proceedings: processing is governed by Sections 483 et seq. StPO.
• Preventively stored records held by the state police: in North Rhine-Westphalia, Section 41 of the State Police Act governs identification measures. Once the requirements cease to apply, the records must be destroyed, and the police must point out at the time of the measure that destruction can be demanded.
• Records in the European ECRIS-TCN system: for third-country nationals, Section 81b(2) StPO provides for fingerprints to be taken under narrow conditions. Section 81b(4) StPO requires deletion where there has been a final acquittal or the proceedings have been discontinued other than provisionally.

An express, reasoned application for deletion is therefore often the more important step – and it can still be made years later.

In which proceedings it is typically ordered

Identification processing arises across the whole of criminal law, but particularly often in these settings:

• Sexual offences: allegations of sexual assault, rape, sexual abuse of children, sexual harassment and child sexual abuse material – here the authorities base retention almost invariably on a forecast of repetition.
• Violent offences: assault, aggravated assault, robbery and arson.
• Series and property offences: residential burglary and theft, where matching traces is the point.
• Drugs and firearms law: for instance trafficking or breaches of the Weapons Act.

The trigger is usually a preceding coercive measure: an arrest, a search or a police summons.

What you should do now

• Secure the order: ask to be handed the document or photograph it. What matters is which variant of Section 81b StPO it relies on.
• Note the deadlines: under variant 2, the period for lodging a remedy runs from notification. The instruction on remedies states it – missed deadlines are hard to repair.
• Say nothing about the substance: tolerating the measure is not the same as making a statement.
• Do not resist physically: resistance does more harm than good.
• Apply for access to the file: only the file reveals what the authority’s forecast is actually based on.

We examine which variant the order relies on, whether each individual measure was necessary, which avenue of appeal is open – and whether an application to destroy the records has prospects of success. Call us: +49 228 504 463 36.

Whether the order holds usually becomes apparent only after access to the case file, because that is where the basis for the authority’s forecast appears.

This page gives a general overview and does not replace advice on the individual case. Whether identification processing can be challenged, and with what prospects, depends on the specific circumstances and the contents of the file.

This information does not replace a review of the individual case. In criminal proceedings, the defense strategy depends substantially on the case file, the specific allegation and the evidence.