Legal battle against Passport Act reaches climax at State Council

For years, numerous Dutch citizens have been fighting a frantic battle against the mandatory collection and storage of their fingerprints under the Passport Act. Since 2009, the collection of fingerprints for a new passport has been mandatory. According to the Dutch government, these fingerprints serve to combat look-alike passport fraud. However, hard figures on this type of fraud have never been disclosed by the Dutch government. Wob requests by Privacy First in recent years have shown that it is only a relatively minor phenomenon: at most a few dozen cases a year. Today, Privacy First adds new figures on this look-alike fraud: in the Netherlands, this involved only 7 passports and 3 ID cards in 2014. These figures can be found in the Royal Military Police's Statistical Annual Report on Document Fraud 2014 (pp. 38-39). Click HERE to download the entire report (pdf, 54 pp, 10 MB).

Lack of necessity and proportionality

Taking the fingerprints of the entire Dutch population to combat a handful of look-alikes cannot possibly be considered "socially necessary" and "proportionate". However, such necessity and proportionality are required under European privacy law (Art 8 of the European Convention on Human Rights). The taking of everyone's fingerprints under the Passport Act is thus unlawful and should never have been introduced.

Silent judges

So far, no Dutch or European court has been willing to make a critical, principled judgment on this. On Thursday 26 November and Thursday 3 December next, seven court hearings will take place at the Council of State during which this and other issues surrounding the Passport Act (including the RFID chip in passports and ID cards, conscientious objections and the storage of fingerprints and facial scans) will again be discussed in detail. Since May 2010, Privacy First together with 19 co-plaintiffs (citizens) were already waging an exhaustive civil law battle against the previous centralised and decentralised (municipal) storage of fingerprints under the Passport Act. In May this year, however, the Supreme Court declared this civil Passport lawsuit (wrongly) inadmissible and referred to the parallel, partly similar administrative law cases before the highest administrative court: the Council of State. So it is now up to the Council of State to still deliver a critical opinion on (among other things) the collection and storage of fingerprints under the Passport Act. If not, the citizens concerned are left with a promising legal action to the European Court of Human Rights in Strasbourg.

Lack of legal protection

The distressing aspect of the current cases before the Council of State is that the citizens concerned have been going through life without valid passports for years. Indeed, they could only take legal action under administrative law after their passport application was rejected due to their refusal to provide fingerprints. Partly for this reason, Privacy First opted in 2010 to litigate under civil law instead of administrative law. However, the Supreme Court proved totally insensitive to this. As a result, Dutch citizens who do not want to provide fingerprints for a passport are forced into a contrived administrative law procedure, with all the social disadvantages and risks that this entails. Privacy First expects this situation at the European Court in Strasbourg to result in the Netherlands being condemned for lack of access to justice and ineffective remedies (Articles 6 and 13 ECHR). Thus, these cases have long ceased to be purely about the right to privacy, but also about the effective legal protection of the Dutch population against unlawful legislation such as the Passport Act.

Privacy First hopes that the Council of State will soon issue a critical opinion. If not, Privacy First will be happy to assist the concerned citizens in their further legal action towards Strasbourg.

In recent years, civil rights association Vrijbit has been actively involved in the administrative law cases now before the Council of State. For further information on this matter, Privacy First would therefore like to refer you to Freebit.