The London-based human rights watchdog Privacy International today warned that Justice Minister Donner's proposed 'Wet op de uitgebreide identificatieplicht' will violate the European Convention on Human Rights. The organisation has vowed to take legal action in the courts if the Parliament approves the proposals.
The proposed law will give a wide range of government and law enforcement officials the power to demand identification in the course of their duties. A penalty of €2,250 (US$2,500) will apply to anyone who does not comply. Refusal will constitute a criminal offence.
The international watchdog has warned that both the toonplicht requirement (obligation to disclose ID) and the draagplicht requirement (obligation to carry ID) will breach key elements of human rights law. They fail the fundamental tests of proportionality, necessity and foreseeability.
While acknowledging the recent changes to the proposal, Privacy International believes that the Netherlands proposal continues to violate several fundamental protections under the European Convention on Human Rights. European case law establishes that the State cannot impose a pre-requirement on citizens to yield their rights unless there is an overwhelming necessity to do so. Nor can a "blanket" imposition be established unless it is in the most unusual circumstances (i.e. imminent threat of terrorist attack).
The proposal is also likely to create concern for visitors to the Netherlands. The requirement to carry identification is in direct conflict with conventional advice to travellers to avoid carrying ID unless absolutely necessary. The existence of a substantial fine and a criminal offence will cause significant concern.
The legal arguments against the proposal are overwhelming. Article 8 of the European Convention on Human Rights (ECHR) guarantees every individual the right to respect for his or her private life, subject only to narrow exceptions where government action is imperative. The Donner proposals would interfere with this right by establishing an identity requirement on citizens where no suspicion exists. This interference with the privacy rights of every resident and visitor cannot be justified under the limited exceptions envisaged by Article 8 because it is neither consistent with the rule of law nor necessary in a democratic society
Privacy International also believes that the requirement for children to carry identification violates the UN Declaration on the Rights of the Child (article 16).
Over the past thirteen years Privacy International has worked extensively to combat identity schemes in countries such as the United States, Canada, Australia, the United Kingdom and the Philippines. The organisation believes the Netherlands proposal is one of the most ill-considered, intrusive and pointless identity measures in recent years.
The government of the United Kingdom this year proposed a national identity card scheme, but because of human rights concerns the government reluctantly ruled out a requirement to carry identification in public. The United Kingdom, like the Netherlands, already provides police with authority to establish the identity of suspects in the course of investigations.
The indiscriminate identity requirement proposed by Minister Donner offends a core principle of the rule of law: that citizens should have notice of the circumstances in which the State may conduct surveillance, so that they can regulate their behaviour to avoid unwanted intrusions. Moreover, the requirement would be so extensive as to be out of all proportion to the law enforcement objectives served. Under the case law of the European Court of Human Rights, such a disproportionate interference in the private lives of individuals cannot be said to be necessary in a democratic society.
With regard to the Data Protection law, Privacy International argues that the blanket identification regime breaches the principle of proportionality, that the practice would flout the specificity principle, and that the existence of an identity requirement takes no account of the consent principle.
Simon Davies, Director of Privacy International, said:
This proposal will create an unacceptable imposition on all residents and visitors to the Netherlands. It will destroy relations between authorities and the public, and is likely to be abused by over-zealous officials. There is not a shred of evidence that these powers are either desirable or necessary."
The law gives extremely wide scope to officials and law enforcement. It refers to the right to demand identification at any point in the performance of responsibilities or functions. The only requirement is that the demand is "within reason". This is an unacceptably poor safeguard.
In addition, Privacy International's research into the implications of national identity requirements has established that these initiatives have no effect on the reduction of crime or fraud, but introduce additional problems of discrimination, criminal false identity and administrative chaos.