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Netherlands: Court Test of Fingerprint Database Legality

(Feb. 24, 2010) It was reported on February 18, 2010, that a Dutch court may soon hear the appeal of Aaron Boudewijn, a law student at the University of Utrecht, against a municipal government decision to deny him a new passport because he had refused to be fingerprinted for it. Boudewijn was denied the new biometric passport in late September 2009, just after the issuance of such documents was instituted in the Netherlands. Boudewijn was the first Dutch citizen to challenge the requirement, adopted in accord with European Union regulations, that fingerprints be surrendered for use on Dutch biometric passports. More specifically, he opposed the decision taken by the Netherlands to create a separate database in which all the fingerprints are stored. (Folkert Jensma, Legality of Fingerprint Database to Be Tested in Court, NRC HANDELSBLAD INTERNATIONAL, Feb. 18, 2010, available at

Boudewijn reportedly will cite the same case law, S. and Marper v. United Kingdom, that was used by the Dutch privacy watchdog organization Vrijbit when it filed a suit against the Dutch government before the European Court of Human Rights (ECHR) last year. Vrijbit, which is supporting Boudewijn's appeal, argues in the complaint that a person who regrets having allowed the fingerprinting will be unable to have his or her prints struck from the database. (Id.)

In Vrijbit's view, the EU regulation obliging signatory states to the Schengen agreement on open borders to include fingerprints in their passports is specifically intended for document verification and to “establish a reliable connection between the document and its bearer,” whereas the Dutch government “has taken advantage of this regulation to set up its own database that will be used for judicial ends, and be accessible to intelligence agencies,” constituting “a violation of fundamental rights” protected by the European Convention.” (Id.) Ank Bijleveld, Deputy National Affairs Minister, has stated that a passport database cannot be compared to the U.K. criminal registry at issue in S. and Marper v. United Kingdom. (Id.)

The ECHR took the British government to task in S. and Marper v. United Kingdom for having refused to remove from a central DNA registry the record of a child innocently involved in a criminal case. The ECHR found that the government's actions had violated article 8 of the European Convention on Human Rights, on protection of the right to privacy. (Id.) It stated in conclusion:

… the Court finds that the blanket and indiscriminate nature of the powers
of retention of the fingerprints, cellular samples and DNA profiles
of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants' right to respect for private life and cannot be regarded as necessary in a democratic society … . (S. and Marper v. The United Kingdom, 30562/04 [2008] ECHR 1581 (Dec. 4 2008), available at