The Ombudsman considers that circumstances such as (merely) moving in the direction of a protest rally, (merely) staying at the protest rally site immediately before or during the protest rally are not such as to satisfy the reason for suspicion and thus the existence of conditions for the identification procedure on the said legal basis.
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The ombudsman found information on social networks and in the media that police officers were supposed to identify several people during the protest on 19.6.2020, including some random passers-by. The Ljubljana Police Directorate explained to the media that “they did not establish the identities of random passers-by, but persons for whom there are reasons in Article 40 of the Police Tasks and Powers Act (ZNPPol)”.
In the inquiry, we asked the MNZ, among other things, in how many cases the identification procedure was carried out in connection with the exposed event on 19.6.2020 and on what legal basis. We also asked for information on how many times the reason for identification was indent 4 of the first paragraph of Article 40 of the ZNPPol and which clues or data in these cases aroused suspicion among police officers that individuals had committed or intended to commit a misdemeanour or criminal offense. On the basis of the aforementioned legal provision, police officers may establish the identity of a person who by his behaviour, actions and loitering at a particular location or at a particular time gives reason to suspect that they will commit, commit or have committed a criminal offense or misdemeanour.
In its response, the MNZ explained, among other things, that during the protest rallies on 19.6.2020, police officers carried out an identification procedure in 69 cases. All procedures were carried out on the basis of indent 4 of the first paragraph of Article 40 of ZNPPol. In addition, the provision of the 2nd indent of the first paragraph of Article 40 of the ZNPPol was applied simultaneously in 28 cases. On the basis of the latter, police officers may establish the identity of a person who enters or is located in an area, place, space, facility or district in which movement is prohibited or restricted.
Regarding the Ombudsman’s question, what led the police officers to establish the existence of legal conditions for the implementation of the identification procedure, the Ministry said that the identification procedures in specific cases were carried out with a proactive (preventive) purpose of the police, as persons with their actions (on the way to the place of the protest rally) or by staying at a certain place (at the place of the protest rally) and at a specific time (immediately before or during the protest rally) arouse suspicion that they will commit a crime or misdemeanour.
Against 27 persons (individuals) out of 69 cases of establishing identity, the police initiated misdemeanour proceedings for violations of Article 22 of the Protection of Public Order and Peace Act (ZJRM-1; failure to comply with a lawful measure of an official). According to the estimated number of participants in the protest (approximately 7,000), the MNZ also estimated that the police acted in accordance with the police principle of proportionality from Article 16 of the ZNPPol.
In the Ombudsman’s opinion, the MNZ’s response did not eliminate all (media-mediated) doubts regarding the justification of the identification of persons in relation to the legal basis for the exercise of such a police power. In the answer of the MNZ, we especially missed the definition of external, (in advance) visible signs or a set of those circumstances that could raise or have raised suspicion that any of the 69 persons (whose identity was established on the basis of indent 4 of the first paragraph of Article 40 of the ZNPPol) has committed or will commit a misdemeanour or a criminal offense. The Ombudsman considers that circumstances such as (merely) moving in the direction of a protest rally, (merely) staying at the protest rally site immediately before or during the protest rally are not such as to satisfy the reason for suspicion and thus the existence of conditions for the execution of the identification procedure on the aforementioned legal basis in the ZNPPol. The aforementioned circumstances are also so general that they could in all likelihood be attributed to all the protesters, who number around 7,000. Therefore, it is not entirely clear on what basis the police actually established the identities of only 69 people out of all the other protesters.
In its response, the MNZ did not specifically explain which criminal offenses or misdemeanours were alleged to be those in respect of which the police officers concluded before the identification of the persons that they intended to commit them or were committed by persons who were included in the proceedings. In connection with this inquiry, the Ministry wrote: “Given the criminal acts that took place at the protest rallies before 19.6.2020 (there are well-founded reasons to suspect that on 12.6.2020, a criminal act “Participation in a group that prevents an official from taking an official act” under Article 301/I KZ-1 took place) and calls on social media for the fall of fences, the indications cited above were the reason why the identification procedures were carried out.”
In our opinion, the identification procedure on the basis of indent 4 of the first paragraph of Article 40 of the ZNPPol is justified only in the event that there is at least a suspicion that a certain person will commit, is committing or has committed a criminal offense or misdemeanour. Although this is the lowest level of the standard of proof, we believe that the suspicion must nevertheless always be actualised, and it must be expressed in certain connecting factors (as stated in the decision of the High Court Ref. No. II Kp 285/2009 of 9.6.2009). Similarly, the Constitutional Court of the Republic of Slovenia (US RS) in its decision no. UI-152/03-13 of 23.3.2006, in which, at the Ombudsman’s request, it examined the legal regulation of the aforementioned police power and, among other things, pointed out in its decision “that in cases where human rights violations are carried out for the so-called preventive or proactive purposes (when, for example, the prohibited act has not yet taken place at all), the powers of the state must be more limited than in the case when the purpose of the intervention is already repressive. Otherwise, all safeguards against arbitrary application of the law are ineffective. The purpose and reason for legal regulation is precisely to prevent such application of the law and to enable effective supervision.” Therefore, in the Ombudsman’s opinion, it is all the more important that in these cases the specific circumstances and decisions leading police officers to “find individuals suspicious”, are precisely expressed, as the legal provision requires the existence of a certain degree of probability of their illegal conduct or future such conduct. We therefore consider that general descriptions such as moving in the direction of a protest rally, staying at the protest rally site immediately before or during the protest rally do not meet this criterion. If the police officers used the police power of identification in specific cases (solely) on the basis of the exposed circumstances, the question seriously arises as to whether these 69 measures were actually carried out in accordance with the law and if the right to privacy and personal rights from Article 35 of the Constitution of the Republic of Slovenia was not excessively interfered with.
Although the MNZ in its reply did not define which prohibited acts the individuals allegedly committed or intended to commit, we could also not ignore the offenses determined by the then (on 19.6.2020) Ordinance on Temporary General Restriction on Gathering People in Public Places and Locations in the Republic of Slovenia, and for which fines are imposed in accordance with the law governing infectious diseases. In addition to the responsible inspection authorities, the implementation of this decree is also supervised by the police within the scope of their powers. Regarding the implementation of the aforementioned ordinance, out of the police powers listed in Article 33 of the ZNPPol, the police will most often warn and order, and within other tasks in the case of established violations, submit proposals to the health inspectorate to initiate misdemeanour proceedings. For the purpose of submitting the said proposal, the police will also carry out an identification procedure.
However, even in a situation where the police, by their presence, are trying to ensure the safety of protesters and at the same time directly detect possible violations, an identification procedure carried out by the police when the violation (in relation to the violation of gathering in public places) would not have occurred yet (i.e. on the basis of indent 4 of the first paragraph of Article 40 of the ZNPPol), it could, in the Ombudsman’s opinion, present a deviation from the principle of proportionality from Article 16 of the ZNPPol. In the first paragraph, it stipulates that in cases where different police powers can be used to successfully perform a police task, police officers shall employ only those powers whereby the police task can be carried out with the least damaging consequences. Damaging consequences are measured by the intensity of interference with human rights and fundamental freedoms. It should not be overlooked that in the process of establishing their identity, a police officer stops a person and thus interferes with their freedom of movement (Article 32 of the Constitution of the Republic of Slovenia). Although we agree with the MNZ that establishing identity for preventive purposes can also have a preventive function, because, for example, the person in question is aware that it will be easier for the police to track them down, which may deter them from committing a prohibited act, we believe that for deterrence from violations of the ordinance regarding the restriction of gathering in public places, a milder and often more appropriate police power is a warning (Article 38 of the ZNPPol) and an order (Article 39 of the ZNPPol). Such identification procedures may in general not be used as a way of establishing public order, but can only be used if the already mentioned legal conditions are met, which prevent the arbitrary conduct of police officers. The police must employ all powers lawfully, under the conditions and in the manner specified in the ZNPPol and other regulations. This also applies to the power of establishing identity.
With regard to establishing identity, we have not received a concrete initiative for consideration, within which it would be possible to examine in more detail all the circumstances of the exercise of this police power in a specific case or specific cases. Taking into account the aforementioned views on the issue under consideration, the Ombudsman again recommended that police officers always exercise a careful assessment of the conditions laid down by law and other regulations for the exercise of police powers in order to exercise their power of establishing identity.