The legislative powers of the police to stop individuals
In Belgium, the identity checks are regulated by two pieces of legislation:
- Article 1 of the Royal Decree of 25 March, 2003, regarding identity cards (artikel één van het Koninklijk Besluit van 25 maart 2003 betreffende identiteitskaarten); and
- Article 34 of the Act on the Police Function (art. 34 van de Wet op het Politieambt (WPA)).
Article 1 of the Royal Decree states, among other things, that every Belgian citizen over the age of 15 should have his/her identity card with him/her at all times and submit it to the police when requested. However, the legal basis for such identity checks is in Article 34 of the WPA. This defines: who can be the subject of a check; for how long the identity documents may be retained; and for what time someone may be detained if they refuse to or cannot deliver proof of identity. The legislation allows the citizen who is being checked to prove his/her identity in any way. This means that, besides the identity card, other documents may also be shown. Anyone who is not in possession of a valid identification document can receive a fine and the police may draw up a report.
Section 1 of Article 34 of the WPA specifies that police officers may check someone’s identity when that person has committed a crime or intends to enter a space where there are concerns about potential public disorder. These are known as reactive identity checks in that officers react to an event that has already taken place. The same section also mentions proactive police checks. These are permitted “if they, on the grounds of that person’s behaviour, material clues or circumstances of place or time, have reasonable grounds to think that the person being searched has tried or is prepared to commit a crime or that he/she could disturb or has disturbed public order”.
This phrase does not apply to police officers who have the status of a police inspector. They possess a more limited power. Police agents can only conduct identity checks “in the frame of the execution of their powers with regard to traffic, local police orders, the establishment of traffic accidents and their consequences, assistance to police officers, the surveillance of arrested citizens and catching someone in the act (flagrante delicto)” (De Raedt, et al., 2017, p. 64).
The obligation to register stops
There is no legal obligation to register identity checks. Neither the Royal Decree nor the WPA stipulates that identity checks should be recorded. An exception to this concerns the police district of Mechelen Willebroek. In June 2017, following allegations of racial profiling, they implemented a project to register each identity check. Ongoing research shows that, in practice, some data are being stored. However, this is only the case when a search is made of the General National Database (Algemene Nationale Gegevensbank (ANG)). As soon as a police officer looks for someone’s identity in the ANG, this information is saved as a ‘hit’. Subsequently, there are two different scenarios. If the check results in a judicial or administrative sanction, the police officer will draw up a report (proces-verbaal (PV)) which notes, amongst other things, the reason the person was convicted and his/her identity was checked. These reports are retained and can be consulted later if necessary. If the check does not lead to a conviction, the police officer can make a record of the check in the computer system. This notification is also retained, and each police officer employed in the same police district can access this information. However, there is no systematic approach to the way in which this is done. Some police officers specify, very accurately, the reason for the check, while others use more general descriptions, such as ‘traffic’ or ‘suspect behaviour’. But not every police officer reports identity checks that have no penal result. Finally, there is no institution that systematically keeps track of, analyses or publishes recorded numbers.
Legislation procedures which protect citizens from police offences
Police duties with regard to discrimination are covered in the Anti-Racism Act of 1981 and the Anti-Discrimination Act of 2007. They make any discriminatory use of identity checks illegal. Article 24 of the police code of ethics equally states that all forms of discrimination are prohibited. Should all this legislation not be sufficiently clear, there is the Circular (a guidance note) to the WPA of 2 February, 1993, which specifies that identity checks may not be done randomly and that an officer must have a well-founded police reason to check someone’s identity.
Citizens may complain to the Internal Control service (a complaints department) of the specific police district. At the federal level, there is also an Internal Control service. It is also possible to file a complaint with the General Inspectorate of the Federal and Local Police. External scrutiny is provided by the Standing Committee of Surveillance of the police forces (Vast Comité van Toezicht op de politiediensten (Comité P)) to which citizens can complain. The Comité P, however, does not possess powers of sanction and cannot, therefore, impose independent penalties.