The investigative authorities in Germany handle the storage of highly personal data very “generously,” following the motto: it might be useful someday.
However, this is precisely where the problem lies: As long as data collected during a so-called “identification procedure” of a (former) suspect, such as DNA, fingerprints, or photographs, are stored by the police, the individual remains a potential suspect in the future.
Whether as a “comparison image” shown to witnesses during investigations, for particularly “thorough” checks in traffic or at border controls, or simply the discomfort of knowing that law enforcement agencies store personal data—all are strong reasons to oppose the collection or storage of one’s data.
It is crucial to distinguish whether the data has already been collected—i.e., whether a saliva sample has been taken, photos have been captured, and/or fingerprints have been recorded—or whether this is imminent, for instance, if one has received a summons for an identification procedure.
Summons / Request for Identification Procedure:
If the identification procedure has not yet taken place, it is strongly advised not to comply without thorough (legal) review. The police often exploit the element of surprise in a temporary arrest or a summons for questioning to conduct an identification procedure, even though there is generally no legal obligation to comply.
It is not uncommon for individuals to be pressured into giving their consent—often with the argument that it could otherwise be legally enforced.
However, what is often conveniently omitted: No one is obligated without a formal order to provide personal data. In the case of a DNA sample, a court order is even required. Therefore, one should never agree to the “voluntary” provision of data; only then are the police or prosecution forced to issue formal orders, which can always be reviewed by a judge and often turn out to be disproportionate and thus unlawful.
Law enforcement authorities are well aware of this, which is why they often do not issue formal orders when the suspect refuses to consent. If the police threaten a court order for a DNA sample, this is not automatic. Obtaining such an order involves a lengthy process (submission to the prosecution, which reviews and, if necessary, applies to the court), and it is by no means guaranteed that the court will approve the request.
Even if a court order has been issued, there are promising ways to challenge it. German courts, especially the Federal Constitutional Court, have repeatedly emphasized that a mere suspicion of a crime is not sufficient to collect or store personal data.
To circumvent this, investigators often use complicated “official language” in summons, which quickly gives the impression that one is obligated to comply and that non-compliance could lead to severe penalties or even arrest.
However, the legal hurdles are already high due to the numerous legal requirements, requiring a precise examination of each individual case. The legislature has placed great importance on this due to the significant intrusion into personal rights that an identification procedure entails.
Regardless, an “identification procedure” is also an unpleasant experience. The police often use the procedure to “chat” with the suspect and extract “spontaneous statements” regarding the allegations. Not infrequently, the data collected goes far beyond what was stated in the summons or the court order (if available), as authorities exploit the suspect’s inexperience and overwhelm them with the situation to obtain as much forensically useful material as possible. Besides photographs, fingerprints or even a DNA sample are often requested—since “you’re already here anyway, and it can be ordered later.” However, voluntarily providing a saliva sample (DNA swab) or other identification measures should be strongly avoided!
Before providing any personal data, it is essential to seek legal advice from a criminal law specialist to determine whether you are even obligated to comply. Even if a court order is in place, there are good chances to challenge the legality of the order.
Deletion of Identification / Personal Data Stored by the Police
If personal data such as photographs, fingerprints, or even a DNA sample have already been collected by the police, legal action can still be taken to remove them.
A common misconception is the belief that data is automatically deleted or destroyed over time. Even in the case of an acquittal or a final case dismissal, law enforcement agencies tend to retain the collected data.
However, deleting previously collected and stored data requires considerable legal effort, as data collection and storage are based on both criminal procedure and police law, meaning that different authorities and courts may be responsible.
Despite the complexity of the necessary procedures and applications, the permanent deletion of these records should always be pursued.
Given the disadvantages of long-term storage of personal data, any identification procedure should be reviewed and challenged by an experienced criminal defense attorney.
Data Protection Rights for Access and Deletion of Other Police-Stored Personal Data
Unfortunately, law enforcement agencies not only store data collected during identification procedures but also any supposed or real findings. Police departments maintain databases on everyone who has had any police contact, from minor traffic violations to measures under police law.
Legal deletion deadlines are often “forgotten” or simply ignored, as the police face no real consequences. This can lead to unnecessary issues during traffic stops or border crossings—once you have been “on the police radar,” it remains that way. Even an obviously unfounded accusation from a quarrelsome neighbor 15 years ago may still be recorded, and data collectors seem uninterested in removing it.
Fortunately, an experienced defense attorney can efficiently request access and deletion of such data from the police, at least when the storage is obviously unlawful or long overdue for deletion—which is often the case.
Our law firm is dedicated to using committed, serious, and knowledgeable expertise to utilize all legal options in criminal proceedings and develop effective defense strategies that specifically target the weak points of the justice system.
No other area of law has so many discretionary decisions, considering the wide range of legal outcomes in criminal proceedings: from case dismissal (with or without fines), to written penalty orders, to case non-opening, acquittal, warnings, suspended sentences, or prison sentences ranging from a few months to many years—with or without parole.
The outcome in criminal law depends significantly on the choice of the right attorney.
Just as with a doctor, trust in the best hands is the most important factor when hiring an attorney. You can always contact us for a personal assessment of our experience and expertise.
