APPUCATÏON/REQUÊTE N^ 16810/90 Filip REYNTJENS v/BELGIUM Fihp REYNTJENS c/BELGIQUE DECISION of 9 September 1992 on Hie ddmissibilily of llie jpphcalion DÉCISION du 9 septembre 1992 sur la recevjbililé de la requête Article 5, paragraph I (b) of the Convention Pci son held ~ a police station for several hotir^ for an identity (.~-~~ Measiiie justified lo ^~\~~ ftdfdnicnt of an obhgation preset ihed hy law Article 8, paragraph 1 of the Convention The obli<iatton to caii\ an ident\t\ card and to show H to the police whenevei leqiiested doe\ not (on\tiltttc an uiteijeiente ~ ilh the right to respectful private life in so jai a? the domment dne\ not contuin any information /elating to piivate life Article 26 of the Convention To exhaust domestic lemedies the penon concerned must have raised before the national anthoniies. at least in subslum e. the complaint he puts befoie the Commission Article 2 of the Fourth Protocol The oblii^ation to can\ an identity caid and to show It to the police whenevei lecjiiested does not constnine a ie\liiction on liheitv of movement (TRANSLATION) THE FACTS The applicant, a Belgian national born in 1952 in ~~1~'~~, is a lecturer in law He resides in Antwerp The facts of the case, as submitted by the applicant may be summarised as follows On 25 October 1987 at about 3 p m , the applicant, who was driving along the public highway was stopped bv police otficers uho asked him to show them his identity card On being asked by the applicant why the> wanted lo see bis identity card, the officers explained that it was merely a routine identity check and that he was not suspected of conmiiding an offence The ipplicant refused to submit to the identity check , giving his reasons in the follov,mg terms I am not ~ irrying my identity card because, as a matter of principle 1 refuse to show it to the police on request (Ik ben geen dragcr ~~~ mijn identiteitskaart omdai ik viit pruicipiele redencn toch weiger om deze te overhandigen wanneer een pohtiedieiist deze \raagt) He was then asked by the officers to accompany them lo the pohce station where he was questioned The applitant was allowed lo leave \\\~ police sianon ~ about "i 30 p m after a record of the interview had been dnwn up On 7 March 19^8 the applicant was summoned to appear in the ~~\\~~ PoliLe Court for contravening Article 1 of the royal decree of 20 Januarv 1967 on identity cards, whii-h is worded as follows 'Every Belgian citizen over fifteen years ot age must carrv an identity card certifying his regislralion on ihe population regtstei or wheie that ~ ird has been lost or destroyed, a certificate issued in accordance wiih Article 7 This certificate, which can in no circumstances be deemed a substitute for ~~ ideniitv card, shall be valid for a period of one monlh. which may be extended by Ihe administrative authorities ot the municipality where the person concerned has his principal residence One or other of the above documents must be shown to the police on request, and whenever a statement is made, a certificate applied foi oi, in general when the bearer's identity needs to be established One or other of the above dociimenis must also be shown to t bailift serving a process or any of the persons charged with serving a copy of such process pursuant to Article 37 para I of the Judicial Code 146 A contravention of this provision is normally punished by a fine, pursuant to Article 9 of the decree ( 1 ) In the Police Court the applicant claimed that, in the case of a random identity check earned out without there being any suspicion that a person had committed an offence, the royal decree of 26 January 1967 was in breach of the Population Registers Act of 2 June 1856. the Constitution and the Convention On 28 June 1988 the Police Court accepted this argument, in part, and refused to apply the impugned royal decree in the case before it. on the ground that it infringed Article 5 of the Convention, an international legal instrument taking precedence over Belgian laws and decrees It gave the following reasons for its decision Onderzocht dient te worden of het KB op de identiteitskaart met stnjdig is met artikel 5 van het E V R M dat de persoonlijke vrijheid garandeert Bij een identiteitsconirole is inderdaad van een vrijheidsberovmg sprake vermits de gecontroleerde enige tijd staande gehouden of medegenomen wordt naar het pohtie- of rijkswachtbureel voor verdere contrôle Derhalve steit zich de vraag of een ~~~~ vrijheidsbero\ mg kadert in dc geest van artikel 5 van het E V R M De thesis deweike de Europese Commissie desbetreffende aankleett is dat een korte vrijheidsberovmg veremgbaar kan zijn met artikel 5 \an het E V R M op voorwaarde dat de welgeving deweike tot de vrijheidsberovmg voorziet met een bijzondere en specifieke doelstelhng werd uitgevaardigd {men denke bv aan de bestnjding van het terrorisme) Welnu, de reglementering op de identiteilskaait in Belgie is veel te algemeen daar zij m .irfikel I van het Koninkhjk Bcluit bepaali dat de identiteitskaart moet worden voorgelegd bij elke vordernig van de pohtie Bovendien weze opgemerkt dat uit een rechtsvergehjkend oogpunt kan worden vastgesleld dat in de ons omnngende democratische samenlevmgen een dergelijke regiemeiilenng onbestaande is [Translation from French text) The court must consider whether or not the royal deciee on identity cards is in breach of Article 5 of the European Conveniion for the Protection of Human Rights and Fundamental Freedoms, which guarantees liberty of the person An (1) Al [1)41 limc in Belgium iwo royal CILLIH^ concerning i(ii,nlilv ciriis WLÎL Minuli mcously in limo Ihil of 26 Januan' 1%7 and j royiJ decree of 29 July 1~85 wliii,h mlroduced n nc« i\pL oi ideniiiy ~ trd wiili a view ~ hiinnonis,i(ion wiih oiher Europe ui couiiinc-. Pcnilinj, Ihe reinu J ol ill eJiisiing id^imiy t irdb ihi. 1967 royal decree n-mimed in forct. in rcspeci of be ircrsof in old siylc idtiitiiy ~ ird (Anicle IS uf llic Liw of 29 July 1985} 147 identity check does indeed involve a deprivation of liberly. given that the person whose identity is being checked is detained for a brief period or taken to the police station for a further check The question consequently arises whether this brief deprivation of liberty is consonant with the spint of Article 5 of the Convention The European Commission's own position on this question is that a brief deprivation of liberty may be compatible with Article 5 of the Convention, provided that the legislation providing for that deprivation of hberiy has been promulgated for a specific pu~ose (the prevention of terrorism, for example) In the present case the regulations on identity cards in Belgium are much too general, since under Article 1 of the royal decree an idenlity card must be shown whenever the police ask to see it It should also be observed looking at the mailer from the comparative law point of view, that it can be shown such regulations do noi exist in neighbouring democratic countries On appeal by the prosecution the Antwe~ Criminal Court, sitting as an appeal court, gave judgment on 31 August 1988. ordering the applicant to pay a fine of BEF 1,5(~, suspended for one year The Criminal Court first pointed out that Article 5 of the Convention concerned only deprivation of libeity by arrest or detenlion Examining the case from the standpoint of Article 8 of the Convention it held as follows 'Overwegende dat eveneens artikel 8 E V R M waarm het recht van een leder op eerbiedigmg van zijn prive- en gezinsleven is vastgelegd de iiimenging van het openbaar gezag in de uitoefening van dat reclit toest i it wamieer ze bij de wet voorzien is en in een democratische samenleving nodig is ondcr meer voor de bescherming van de openbare veiligheid de openbare oide en het voorkomen van strafbare feiten (Cass nr 1986 7 okt 1981 Cass nr 7913 24 mei 1983) Overwegende dat het nieuwe KB van 29 juli 1985 betreffende de identiteitskaarten (Belg Stbl 7/9/1985 12811) evcneens uitdrukkelijk verwijst naar de wet van 2 juni 1856. dat overeenkomstig artikel 15 van liet nicuw ~ D het KB van 26 januan 1967 betreffende de identiteilskaarten geuijzigd bij het ~ ~ van 30 juni 1981, ten aanzien van de bonders van een identiteitskaart als bedoeld m dat besluit van kraclu is tot dai de ideiuitcitskaarten volledig vernieuwd zijn, Dat dit nieuw ~ ~ zijn ootsprong vmdt in het Europees Akkoord betreffende het stelsel inzake het personenverkeer tussen de Lid biaien van de Raad van 148 ~~~~~~, ondertekend te Panjs op 13 december 1~57 (Annuaire Européen, V. 382) en m de resolutie 77 (26) van 28 September 1977 van het Ministercomité van de Raad van Europa betreffende de invoenng en de harmonisatie van de nationale identiteiLskaarten Djt de resolutie onder meer steant op de overwegmg dal de onderdanen vdi} de Lid-Slaten vaok hun identiteit en nationaliteit moeten aantonen zowel m het pnve-verkeer als ten overstaan van hun nationale overheden. (zie L Huybrechts, ~ ~ ~ 1176), Dat het verkeer binnen Europa vergemakkelijkt wordi door een geliarmoniseerd document (zie E E G -resolutie van 29 06 1981 ). Overwegende dat uit geen enkel element van het strafdossier blijkt dat de jdentiteitsconirole in casu door de verbaliserende njkswachter t a v beklaagde 'wiUekeurig' en tergend zou zijn geweest, dat beklaagde met m het bezit werd t>evonden van zijn identiteit^skaart ' [Translation from French text] "Whereas, moreover. Article 8 of the Convention tor the Protection of Human Rights and Fundamental Freedoms, which guarantees to evervone the right to respect for his private and family life, authorises mteiference by a public authority with the exercise of that nght when such interference is in accordance with the law and is necessary in a democratic society in pursuance of aims which include the protection of public safety and the prevention of disorder or cnme (Cass No 1986, 7 October 1981, Cass No 7913. 24 May 1983). Whereas the new royal decree of 29 July 1985 on identity cards (Moniteur belge 7 9 85, 12811) also expressly refers to the Law of 2 June 1856 [and] whereas. pursuant to Anicle 15 of the new royal decree, the ro>al decree of 26 January 1967 on identity cards, as amended by the royal decree ot 30 June 1981, [remains] in force in respect of the bearers of identity cards issued thereunder until all existing identity cards have been renewed Whereas this new royal decree has its origin in the European Agreement on regulations governing the movement of persons between member States of the Council of Europe (European Yearbook V, p 382) and Resolution 77 (26) of the Committee of Ministers of the Council of Europe, of 28 September 1977, on the establishment and harmonisation of national identity cards whereas one of the considerations on which that Resolution is based is that the nationals of a member State must often establish their identity and nationality, both m their private law relations and in their relations with the national authorities (cf L Huybrechts Ock 1176), 149 Whereas movement withm Europe has been tacilnaied b> a harmonised travel document (see EEC resolution of 29 June 198 j ), Whereas there is no evidence in the criminal file that when the police carried out the identity check in issue they dealt with the accused m an 'arbitrary" and provocative manner, whereas the accused was found not to be carrvmg his identity card " The applicant lodged an appeal on points of law, relying on Articles 5 and 8 ot the Convention and Article 2 of Protocol No 4 In a judgment dated 27 February 1990 the Court of Cassation dismissed the appeal In response to the applicant's argument that the decree was unlawful because there was no link between it and the law on which it was based and that the Crown had therefore exceeded iis powers, the Court of Cassation held, infer alia, that the basis lor the royal decrees on identity cards was the Law of 2 June 1856, Article 4 of which was intended to make il possible, by keeping accurate population registers, to keep a check on \~1\~~~ Belgian citizens and aliens present in Belgium lived and lo establish wilh precision their successive places of residence The court further held that by authonsmg police officers to ask to see identity cards Ihe royal decrees in question had established a simple and practical way of discovenng gaps and inaccuracies in statements concerning the information recorded m the population registers COMPLAIN! S 1 Before the Commission the applicant submits that he was detained for more than two and a half hours on the ground diat he had refused to show Ins identity card to the police and that this detention did not fall within any ot the caiegones of aircst or detention authorised by sub paragraphs 1 (a) to 1 (f) of Article 5 of the Convention He asserts, utter aha. that when he was asked to sliow his idenliiy card he uas not suspected of having committed an offence 2 The applicant further maintains that an identity (.heck earned out without a specific legitimate reason, as in the present case, and the recoiding ot information following such an identity check consiitule interference with tlie iiglil to respect for one's private life, guaranteed by Article 8 of the Convention Although such interference is in accordance with the law, it is by no means ' necessary in a demcicralic society", as paragraph 2 of that provision requires for such interference to be juslitied He notes that among the objectives justifying intcrfeience set out m paragraph 2 of Article 8 the only one which could be held to applv lo ideniity checks is 'the prevention of crime" However, according to the preamble to the 1967 royal decree and the case-law on this question, the aim ot the obligation lo cairv an identity card is to make it possible to verify the accuracy of ihe mfoimation recoided in the population registers Having regard to this alleged aim, it cannot be maintained that the organisation ot identity checks is a measure necessary tor the preveniion ot crime' 150 The question also arises m what way random identity checks contribute to the prevention of crime ', especially in view of the fact that of sixteen memtier countries of the Council of Europe in respect of which the applicant has been able to obtain information on this point only four (Denmark. Greece, Portugal and Spain) have, like Belgium, rules requiring their citizens to carry identity cards at al! times 3 The applicant further asserts that the obligation to carry an identity card and to show It to the police whenever requested to do so infringes the right to liberty of movement guaranteed by Article 2 of Protocol No 4 He submits that a person not carrying his identity card is prevented from visiting places where there are frequent identity checks Moreover, stopping somebody u-avelting on the public highway for an identity check constitutes an impediment to the liberty of movement, even though the impediment concerned lasts only a few minutes Lastly, the mere possibility of being detained when not carrying one's identity card is also an impediment to the liberty of movement 4 Lastly, the applicant complains of a violation of Article 18 of the Convention He submits that the way identity checks are carried out constitutes an abuse of authority, since they are used for a purpose they were not intended to serve He maintains that identity checks are used as general policing meisures, whereas, according to the preamble to the 1967 royal decree and case law on ihis question Ihe purpose of the obligation to carry an identity card is to enable the accuracy of information recorded in the population registers to be verified Some identity checks. m fact, are carried oui outside office hours making ii impossible to consult the registers 1 HE LAW 1 Relying on Article 5 of the Convention Ihe applicant complains that he was detained by the police for more than two and a half houis on the giound that he had refused to show them his identity card He maintains that this detention did not fall \Mthin any of the categories of arrest or detention set out in sub paiagiaphs 1 (a) to 1 (0 of Article 5 of the Convention The Commission recalls that Article 5 para 1 (b) authorises deprivation of liberty in the case of ' the lawful arrest or detention of a person for non compliance with the lawful order of a court or m order to secure the fulfilment of any obligation prescribed by law The question arises whether the applicant was deprived ot his liberty in the present case (cf No 8819/79, Dec 193 81, DR 24 pp 158 161) However, the Commission does not consider it necessary to examine that question, since, even if he 151 was, the depnvation of liberty involved would have fallen into one of the categories aulhonsed by the Convention for the reasons set out below In the present case the applicant was taken to the police station after refusing to submit to an identity check As the applicant himselt admits the obligation to carry one's identity card and to show it to the police for identification pu~oses when requested to do so is an obligation prescribed by law The Commission considers that this obligation is sufficiently concrete and specific lo be covered by Article 5 para 1 (b) of the Convention In this case the Commission is of the opinion that in view of the need to secure the immediate fulfilment of the applicant s legal obligation and the short duration of the applicant's detention at the police station it is possible to conclude that a fair balance was struck between the need to secure fulfilment of that obligation and the right to liberty (cf No 10179/82 Dec ~ 5 87 DR 52 p 111) Consequently, in connection with this complaint there is no appearance of a violation of the Convention, and this part of the application must be rejected as manifestly ill-founded, within the meaning of Article 27 para 2 of the Convention 2 Relying on Article 8 of the Convention, the applicant complains of unjustified interference with the exercise of his right to respect lor his private life He submits that an identity check carried out without a specific legitimate re ison and the recording of information following such an identify check ~~~ by no means measures necessary in a democratic sociely , as paragraph 2 of thai provision requires for such interference to be justified Article 8 guarantees intii alia, the right lo icspect for one s private lite In this case (he Commission considers that the obligiiion to carry an identity card and to show it to the police whenever requested to do so does not as such constitute an interference in a person's private life vvithin the meaning of Article 8 of the Convention II notes that under the legislation applicable to identity cards these may not carry any information other than the bearer s name forenames sex, date and place of birth, and main address and his spouse s name and forenames where appropnale They may also carry if the bearer submits a wrillen request to ihal effect, his identification numt)er on the National Population Register and the name and forenames of his deceased or former spouse The Commission accordingly takes the view that an identity card does not contain information relating to private lite, in so far as the identification number in the national register appears therein only if the bearer of the identity card submits a request to that effect in writing (cf No 10473/83. Dec 11 1285,DR 45 p 121) In the absence of any speci il circumstance warranting a reappraisal of this general consideration the Commission considers that examination of this complaint m the form in which it has been submitted by the applicant reveals no interference in his private life uilhin the meaning of Article 8 ol the Convention 152 It follows that in this respect the application must be rejected as manifestly illfounded within the meaning of Article 27 para 2 of the Convention 3 The applicant further asserts that the obligation to carry an identity card and to show It to the police whenever requested to do so infnnges the litierty of movement guaranteed by Article 2 of Protocol No 4 That provision IS worded as follows "1 Everyone lawfully within the territory of a State shall, within that territory, have the right lo liberty of movement and freedom to choose his residence 2 [ ] 3 No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection ot health or morals, or for the protection of the rights and freedoms of others Referring to the considerations set out under 2 above, the Commission considers that, except where there are are special circumstances not found in this case, the mere obligation to carry an identity card and to show it to the police whenever requested to do so does not constitute a restnction of the liberty of movement It follows that this complaint, in the form in winch it has been submitted, must be rejected as manifestly ill founded pursuant to Article 27 para 2 of the Convention 4 Lastly, the applicant complains of a violation of Article 18 of the Convention, on the ground that identity checks are used for a purpose they were not intended to serve Article 18 of the Convention is worded as follows "The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribied ' However, under Article 26 of the Convention, The Commission may only deal with [a] matter after all domestic remedies have been exhausted according to the generally recognised rules of international law 153 ]n this case the applicant did not raise this complaint, either formally or even in substance, during the proceedings in the Court of Cassation In particular, the fact that the applicant maintained thai the royal decree of 26 January 1967 was unlawful because there was no link t^etween that decree and the law on which it was based does not mean that the applicant raised, in substance, his complaint relating to Article 18 of the Convention (~{ , mutatis mutandis, No 11425/85. Dec 5 10 87, D R 53 p 76) It follows that in respect of this complaint the applicant has not satisfied the exhaustion of domestic remedies requirement and that tins part of his application must be rejected pursuant to Article 27 para 3 of the ~ onvention For these reasons ihe Commission, by a majority. DECLARES THE APPLICATION INADMISSIBLE 154