Higher Regional Court confirms forced fingerprinting on cell phones
During a house search, a man resists being forced to place his finger on a cell phone. He is not allowed to do so, says the OLG Bremen.
The alternative of a dummy finger would have been a more serious infringement of civil rights, according to the Bremen Higher Regional Court.
(Image: Daniel AJ Sokolov)
Unlocking a cell phone by forcibly placing a defendant's finger on the phone's fingerprint sensor can be based on the German Code of Criminal Procedure. This was stated by the Higher Regional Court of Bremen (Oberlandesgericht, OLG) in a ruling dated 08.01.2025 (Ref. 1 ORs 26/24). Similar decisions in Germany had previously only been made by local and regional courts.
The decision was prompted by a house search in which a man refused to unlock his cell phone. When a policewoman grabbed the man's hand to forcibly place his finger on the sensor, the man tried to resist. He was eventually pinned to the ground and the phone was unlocked with his finger. The Bremerhaven district court imposed a fine for resisting law enforcement officers, which was also confirmed by the Bremen regional court.
The defendant appealed against this. Unsuccessfully. "The official action of the intervening police officers, with the use of direct coercion (…) was lawful," says the Higher Regional Court, "The unlocking of a cell phone by placing a finger of a defendant on the phone's fingerprint sensor can be based on the authorization basis of Section 81b (1) of the Code of Criminal Procedure (StPO)."
This standard permits, among other things, the compulsory recording of photographs and fingerprints. The technically open wording of the paragraph "also permits the taking of similar measures". Placing a finger on a sensor is a similar measure – and even less intrusive than the taking of a fingerprint for permanent storage by investigating authorities.
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Doctrine of divided opinion
Specialist lawyers are divided on this. The OLG sides with the proponents of coercion and refers to a similar decision by the Regional Court of Ravensburg and the Local Court of Baden-Baden. Although the fundamental right to informational self-determination is interfered with, it is only to a minor extent, which is justified. And the principle of not having to incriminate oneself in criminal proceedings only prohibits coercion to actively cooperate, but not coercion to acquiesce.
In addition, the state had interfered with the fundamental right of citizens to the confidentiality and integrity of information technology systems, but in accordance with the constitution: according to the Federal Constitutional Court and the European Court of Justice (ECJ), stricter requirements apply to secret access, but not to open access as in the present case, says the Higher Regional Court. Furthermore, the general principle of proportionality must be applied, which also speaks in favor of the coercive measure. The alternative would have been to produce a dummy fingerprint, which would have been an even greater encroachment on the rights of the citizen.
Whether the data stored on the phone or retrievable via the phone may be evaluated must be assessed separately from the unlocking. However, this was not the reason for the fine and therefore not the core issue of the decision on the appeal. The Higher Regional Court briefly refers to the provisions on search and seizure in sections 94 and 110 of the Code of Criminal Procedure.
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