Fundamental rights implications of the obligation to provide fingerprints for Eurodac.
Date: 2016-07-15
Institutions: European Union Agency for Fundamental Rights
Subjects: biometrics, data processing, fundamental rights, human rights, information system, migrant, political asylum, right of asylum

HELPING TO MAKE FUNDAMENTAL RIGHTS 
A REALITY FOR EVERYONE IN THE EUROPEAN UNION

05/2015

Fundamental rights implications 
of the obligation to provide 
fingerprints for Eurodac

FRA Focus

Processing biometric data for immigration, asylum and border management pur-
poses has become common. This focus paper looks at measures authorities can take 
to enforce the obligation of newly arrived asylum seekers and migrants in an irreg-
ular situation to provide fingerprints for inclusion in Eurodac. It is a large database 
of fingerprints the European Union (EU) set up for the smooth running of the Dub-
lin system, a mechanism established to determine the Member State responsible for 
examining an asylum application. The paper intends to assist EU Member States and 
EU institutions and agencies in avoiding fundamental rights violations when promot-
ing compliance with the duty to provide fingerprints, by examining more closely the 
impact of refusing to give fingerprints on the principle of non-refoulement, the right 
to liberty and security, and the protection from disproportionate use of force. It also 
contains a checklist to guide authorities responsible for implementing the duty to 
take fingerprints.

This focus paper is the first publication of FRA’s project on biometric data in large 
information technologies systems in the field of borders, immigration and asylum 
included in its Annual Work Programmes 2014–2016. It is a living document that FRA 
will review in case of new research findings or if the currently sparse national case 
law develops further. Although focused on fingerprints, the considerations included 
in this focus paper also apply to other biometric identifiers.

Main conclusions of this focus paper

  Compliance with the obligation to provide fin-
gerprints for Eurodac should primarily be secured 
through effective information and counselling, 
carried out individually as well as through out-
reach actions targeting migrant communities. To 
be effective, information should be provided in 
a language people understand and taking into 
account gender and cultural considerations.

  Refusal to provide fingerprints does not affect 
Member States’ duty to respect the principle of 
non-refoulement.

  Deprivation of liberty to pressure persons to give 
their fingerprints must be an exceptional meas-
ure which should not be used against vulnera-
ble people. 

  It is difficult to imagine a situation where using 
physical or psychological force to obtain finger-
prints for Eurodac would be justified. 

1

Fundamental rights implications of the obligation to provide fingerprints for Eurodac

Checklist to act in compliance with fundamental rights 
when obtaining fingerprints for Eurodac

Asylum seekers and migrants in an irregular situation apprehended in connection with their unau-
thorised border crossing have a duty to provide fingerprints for Eurodac. Member States are obliged 
to take their fingerprints, but there are limitations on how to enforce such obligation so as not to vio-
late fundamental rights. FRA compiled this checklist to assist authorities and officers who have been 
assigned the task of taking fingerprints for Eurodac to act in compliance with fundamental rights, parts 
of which are also useful for individual officers.

 9 Obtaining  fingerprints  should  be  part  of  the  
registration  and  referral/relocation  process, 
and not implemented as a stand-alone activity. 

 9 At  the  start  of  the  fingerprinting  process,  
officers must inform each person on the obli-
gation to give fingerprints, the purpose for col-
lecting the fingerprints and the manner in which 
fingerprints will be processed, as required by 
Article 29 of the Eurodac Regulation. Informa-
tion should be provided both orally – in simple 
terms – as well as in writing, in a language the 
person understands.

 9 Initial information on fingerprinting for Eurodac 
should be given together with other registra-
tion-related information. To be effective, infor-
mation should be provided through appropriate 
means, in a language the persons understand, 
and taking into account gender, age and cul-
tural considerations. Information should target 
the individual but, where appropriate, also be 
complemented by community-level initiatives.

 9 Officers should have basic skills in noticing signs 
that a person may be traumatised, a victim of 
torture, trafficking in human beings, sexual or 
gender-based violence, or other serious crime; 
and be trained on how to mitigate the risk of 
re-traumatisation or other complications dur-
ing the fingerprinting. 

 9 Officers  should  have  the  necessary  skills  to  
recognise  whether  a  fingertip  texture  was 
altered  in  bad  faith,  or  whether  it  is  physi-
cally impossible to take good quality finger-
prints, and refrain from imposing any hardship 
on  people  who  cannot  provide  their  finger-
prints for justifiable reasons (such as torn fin-
gerprints as a result of manual work).

 9 When someone refuses to give fingerprints, 
officers should inquire what the reasons for 
the refusal are (refusals may not only be moti-
vated by the wish to circumvent the Dublin 
rules, but also by other considerations, such as 
the fear of data being shared with the coun-
try of origin), and record these.

 9 Before resorting to coercive measures, people 
need to be provided with an effective opportu-
nity to comply voluntarily with the fingerprint-
ing requirements, including by asking them to 
appear for fingerprinting a second time. Peo-
ple who have been informed and continue to 
object  to  giving  their  fingerprints  should  be 
counselled  with  a  view  to  addressing  their 
fears and expectations.

 9 Detaining someone to force them to give their 
fingerprints must remain an exceptional meas-
ure. It can only be considered if provided for 
under national law; must be aimed only at ful-
fillment  of  the  duty  to  provide  fingerprints; 
must not be punitive; must be of limited dura-
tion; and must cease the moment the obliga-
tion  is  fulfilled.  Facilities  used  must  be  ade-
quate and conditions therein humane.

 9 The  use  of  physical  or  psychological  force 
to obtain fingerprints for Eurodac should be 
avoided, given that this entails a high risk of 
violating fundamental rights. 

 9 Children, suspected victims of torture, sexual or 
gender-based violence, victims of other serious 
crimes, as well as traumatised people should 
not be detained or coerced into giving finger-
prints, nor should other people usually consid-
ered vulnerable. No fingerprints for Eurodac 
should  be  obtained  from  children  if  there  is 
doubt concerning whether or not they have 
reached 14 years of age.

2

Introduction

Fingerprints of EU nationals are stored in their pass-
ports under Council Regulation (EC) No. 2252/2004 
of 13 December 2004, which also requires biometric 
data to be included in Schengen residence permits. 
People who need a visa to enter the Schengen area 
need to enrol their fingerprints in the Visa Informa-
tion System (VIS), a large IT system containing sev-
eral million fingerprints and other personal data.1 

Under  Eurodac  Regulation  (EU)  No.  603/2013,  all 
asylum seekers and migrants in an irregular situ-
ation apprehended in connection with an irregu-
lar border crossing – except for children under the 
age of 14 years – must provide their fingerprints. 
These are stored in a large-scale database called 
Eurodac. When Member States apprehend migrants 
in an irregular situation within their territory, they 
can compare the their fingerprints with the Euro-
dac database. 

Eurodac is needed for the smooth running of the 
Dublin system, a mechanism established to deter-
mine the Member State responsible for examining 
an asylum application. In the absence of connec-
tions with a particular Member State (such as a visa 
or the presence of close family members), under 
Dublin Regulation (EU) No. 604/2013 the Member 
State  through  which  the  asylum  seeker  entered 
the EU or the Schengen area usually has the duty 
to examine the application. The Member State of 
entry is typically determined by consulting Euro-
dac, although sometimes other evidence, such as 
a train ticket, is also used. Most asylum seekers do 
not possess valid identity documents – such as a 
passport with a stamp of the border crossing point 
through which entry occurred – that could serve as 
evidence of their travel route.

Eurodac – verifying whether 
a person has applied for 
asylum

The Dublin system can only run smoothly if Mem-
ber States can verify whether a person has already 
applied for asylum, or was apprehended in connec-
tion with the irregular crossing of an external border 
in another EU Member State or Schengen Associated 
Country (Iceland, Liechtenstein, Norway and Swit-
zerland). Eurodac enables Member States to verify 
this in a reliable manner. Although taking finger-
prints for Eurodac does not in itself determine the 
identity of a person, it contributes to their identifi-
cation since a link may be established between an 
asylum applicant and a past Eurodac entry. In case 
of a match in Eurodac, the authorities can request 

the personal data from the Member State that first 
entered the person into Eurodac, based on Article 34 
of the Dublin Regulation. In addition, Article 1 (3) of 
the Eurodac Regulation allows the Member State of 
origin to check the fingerprints taken for the pur-
poses  of  Eurodac  against  other  databases  set  up 
under its national law, such as national databases on 
foreigners. This may also result in the identification 
of the person. Under certain conditions, Article 20 
of the Eurodac Regulation and Articles 21 and 22 
of the VIS Regulation allow fingerprints from asy-
lum seekers to be searched in the Visa Information 
System (VIS). Therefore, at least in these situations 
and in line with Recital 5 of the Eurodac Regulation, 
taking fingerprints for Eurodac might also serve to 
determine or to verify a person’s identity. Further 
exchanges of information with the Member State 
in  which  a  match  was  obtained  could  also  iden-
tify the nationality of the asylum seeker or third-
country national.

Cases of asylum seekers using acid, glue or other 
means to destroy their fingerprints to avoid regis-
tration in Eurodac are known. More recently, the 
lack of registration in Eurodac at points of entry has, 
however, gained increased attention. Since 2014, a 
significant number of asylum seekers has not been 
fingerprinted at the point of entry.2 In some cases, 
this resulted from the limited capacity of front-line 
states to deal with increased arrivals, an issue which 
is being addressed. In others, those arriving – includ-
ing individuals  from Eritrea or Syria likely in need 
of international protection – refused to give their 
fingerprints for Eurodac or to apply for asylum alto-
gether in the first EU Member State they reached. 
Refusals  to  provide  fingerprints  for  VIS  have  not 
been an issue, probably because this would usually 
simply result in the refusal of the visa.

The absence of fingerprint records makes apply-
ing the Dublin system more difficult. Registration in 
Eurodac is also a pre-condition for activating asylum 
seekers’ proposed relocation to another EU Mem-
ber  State.  A  discussion  about  the  feasibility  and 
appropriateness  of  using  restrictive  measures  to 
force third-country nationals or stateless persons 
to give their fingerprints has emerged. The Euro-
pean Agenda for Migration, published in May 2015, 
stresses the importance of fully implementing the 
rules on taking fingerprints at the borders.3 A few 
days later, the European Commission issued a guid-
ance paper on how to implement the duty to take 
fingerprints4, on which civil society commented.5

FRA Focus

3

Fundamental rights implications of the obligation to provide fingerprints for Eurodac

Processing of fingerprints

Fingerprints are processed in Eurodac for asylum 
and immigration management purposes, and not 
to  identify  people  suspected  of  having  commit-
ted a crime. Asylum seekers and migrants are in 
a vulnerable situation. They have often fled their 
country of origin to escape war or persecution, and 
experience tremendous  hardships, often crossing 
the sea in overcrowded and unseaworthy boats, 
in  constant  fear  for  their  lives.  This  is  of  utmost 
importance and must be taken into consideration.

There may be different reasons why people may 
not feel comfortable in giving fingerprints. A desire 
to reach the European country of their choice with-
out the risk of being sent back to a Member State 
of transit under the Dublin system is presumably 
the main reason for refusing to give fingerprints, 
but there may be other explanations. It is possi-
ble that asylum seekers have had bad experiences 
with giving fingerprints to the police in their coun-
try of origin, or that they fear the fingerprints may 
be shared with the country of origin, which could 
endanger family members. Other people may hes-
itate  to  give  their  fingerprints  because  they  are 
generally afraid of technology or may not trust – in 
light of global surveillance scandals, for example – 
that the collected data will be handled in conform-
ity with data protection principles. 

In  addition,  some  people  may  be  unable  to  pro-
vide fingerprints because, for example, their fin-
gertip texture has been scraped off due to manual 
work.  The  VIS  Regulation  has  specific  provisions 
that  address  this  situation,  but  these  are  absent 
in the Eurodac Regulation. If officers are not ade-
quately  trained  to  recognise  whether  or  not  the 
fingertip texture was altered in bad faith, persons 
physically unable to provide fingerprints may face 
undue hardship as they may be suspected of hav-
ing acted in bad faith. 

Interfering with fundamental 
rights

The  processing  of  fingerprints  itself  and  actions 
taken by EU Member States to enforce their obli-
gation to take fingerprints for Eurodac may interfere 
with a number of fundamental rights guaranteed by 
the Charter of Fundamental Rights of the European 
Union (Charter). Interferences may involve absolute 
rights – such as the principle of non-refoulement 
and the prohibition of torture, inhuman or degrad-
ing treatment of punishment – from which no der-
ogations are possible. 

Interferences can, however, also involve rights that 
can be limited, for example, the right to liberty (Arti-
cle  6 of the Charter and Article 5 of the European 
Convention on Human Rights (ECHR)) or the pro-
tection of personal data and private life set forth 
in Articles 7 and 8 of the Charter and in Article 8 
of the ECHR. For interferences with such rights to 
be justified, they have to respect the requirements 
of the Charter and of the ECHR. Under EU law, any 
limitation on fundamental rights guaranteed by the 
Charter must be in line with the requirements of 
Article  52  (1)  of  the  Charter,  namely:  limitations 
must be provided for by law, must genuinely meet 
objectives  of  general  interest  recognised  by  the 
Union or the need to protect the rights and free-
doms of others, respect the essence of the right, 
and be proportionate. 

Obtaining and storing personal data constitutes an 
interference with the right to personal data protec-
tion set forth in Article 8 of the Charter and the right 
to private life set forth in Article 7 of the Charter and 
Article 8 of the ECHR. Fingerprints constitute per-
sonal data.6 The right to personal data protection 
requires fair processing, which includes adequately 
informing persons whose fingerprints are taken, as 
reflected in Article 29 of the Eurodac Regulation. 
This means that, before resorting to sanctions or 
coercive measures, asylum seekers and migrants 
in an irregular situation need to be provided with 
an effective opportunity to comply with the duty to 
provide fingerprints. They must be fully informed 
of all their options, the rationale for collecting fin-
gerprints, the manner in which fingerprints will be 
processed,  and  the  consequences  for  not  giving 
their fingerprints. 

FRA research

FRA  research  carried  out  among  asylum  seekers 
in 2009 shows that they consider social networks – 
such as friends, relatives, acquaintances, other asy-
lum seekers and fellow countrywomen and -men 
who they meet in reception centres and other places 
– to be valuable sources of information,7 although 
these sources may not provide accurate or com-
plete information. To be effective, authorities need 
to take this into account and complement the pro-
vision of information with the provision of coun-
selling, when necessary. FRA research also shows 
that giving information both in writing and orally 
is more effective, and that asylum seekers usually 
consider non-governmental organisations (NGOs) 
more  trustworthy  than  authorities.8  Information 
should also be provided in a gender-sensitive and 
culturally appropriate manner.

4

Returning people who do not give 
fingerprints

The principle of non-refoulement prohibits the return 
of an individual to the frontiers of territories in which  
he or she would face persecution or other serious 
harm. It is the cornerstone of the right to asylum 
set forth in Article 18 of the Charter, as well as a 
core element of the prohibition of torture, inhuman 
or degrading treatment or punishment under Arti-  
cle  3  of  the  ECHR,  as  explicitly  guaranteed  by  
Article 19 of the Charter. 

Non-refoulement 

Save  for  the  very  exceptional  situation  envis-
aged  by  Article  21  (2)  of  the  Qualification  Direc-
tive (2011/95/EU),9 the prohibition of refoulement 
is absolute, meaning that it applies to everybody, 
independently of the person’s status or behaviour. 
Member States are bound by the principle of non-
refoulement, regardless of whether or not the indi-
vidual concerned has requested asylum.10 

Therefore, a person who refuses to give his or her 
fingerprints remains protected by the principle of 
non-refoulement. Such a person cannot be removed 
to a country in which he or she would face persecu-
tion or other serious harm, or from which he or she 
would be returned to another country where such 
risk exists (indirect refoulement). In the absence 
of a clear legal status in the host country provid-
ing  clarity  about  their  rights,  persons  protected 
from refoulement must at least be able to enjoy 
the human rights to which every person physically 
present within the state is entitled (such as, a cer-
tain degree of access to healthcare; basic educa-
tion for children; birth registration; freedom of reli-
gion and conscience).11 

Impact on asylum procedure

The next question is whether, and how, an unjusti-
fied refusal to give fingerprints for Eurodac impacts 
the asylum procedure. Under Article 13 of the Asy-
lum Procedures Directive (2013/32/EU), an asylum 
applicant has a duty to cooperate with  authorities. 
This includes the obligation to provide all neces-
sary information and data to enable the national 
authorities to examine the asylum application. Arti-
cle  13  includes  a  duty  to  cooperate  in  establish-
ing one’s identity, but does not expressly refer to 
fingerprinting as envisaged by Article 9 (1) of the 
Eurodac Regulation. 

Refusing to provide fingerprints for Eurodac can-
not be a ground for rejecting an asylum application 
in substance, because such a decision can only be 
based on an assessment of whether the applicant 
fulfils the requirements for qualifying  as refugee 
or as being in need of subsidiary protection as laid 
down in the Qualification Directive. Similarly, the 
refusal to give fingerprints cannot in itself be con-
sidered  an  implicit  withdrawal  of  the  application 
under Article 28 (1) (a) of the Asylum Procedures 
Directive, because the fingerprint data for Eurodac 
does not constitute essential information to sub-
stantiate the application, as listed in Article 4 of the 
Qualification Directive.

Accelerated asylum 
procedures

Article 31 (8) (i) of the Asylum Procedures Direc-
tive envisages the possibility to examine applicants 
who refuse to give fingerprints for Eurodac in an 
accelerated manner and/or through a border pro-
cedure or in transit zones. Depending on national 
law, such procedures may, for example, consist of 
prioritising specific categories of applications, estab-
lishing shorter delays for appeals, reducing the time 
required for the completion of the appeals process, 
and simplifying and/or prioritising appeals. All accel-
erated procedures must, however, respect the mini-
mum safeguards required by European law,  in par-
ticular those relating to effective remedy, set by 
the ECtHR in its case law on Article 13 of the ECHR 
and Article 47 of the Charter.12 

Accelerated  asylum  procedures  were  conceived 
to  handle  applications  that  are  simple  to  deal 
with because they are clearly abusive, manifestly 
unfounded  or  manifestly  well-founded,13  so  that 
national  authorities  can  focus  their  resources  on 
those applications that require more attention. The 
rationale for allowing swifter procedures is that cer-
tain applications require little time to establish inter-
national protection needs – a consideration which 
does not necessarily apply to applicants who refuse 
to give fingerprints, given that this has no relation 
to the merits of their case. It can therefore be ques-
tioned whether channelling applicants who refuse 
to  give  fingerprints  into  accelerated  procedures, 
which leads to reduced legal guarantees, is justifi-
able in light of the principle of non-discrimination.14 

FRA Focus

5

Fundamental rights implications of the obligation to provide fingerprints for Eurodac

Depriving people of their liberty to force 
them to give fingerprints 

This section looks into deprivation of liberty as a 
tool to force people to give fingerprints. It is not 
about examining cases where deprivation of liberty 
is used in response to a refusal – violent or passive – 
of a police officer’s order, behaviour that is typically 
punishable for all persons, regardless of their legal 
status, and hence also covers non-nationals. In such 
cases, any deprivation of liberty – if allowed under 
national criminal law – would be a consequence of 
the individual’s violent or obstructive behaviour.

Detention is a major interference with the right to 
liberty set forth in Article 6 of the Charter and in Arti-
cle 5 of the ECHR. Strict safeguards exist to prevent 
unlawful or arbitrary deprivation of liberty. Under 
EU law, any limitation on the right to liberty must 
be in line with the requirements of Article 52 (1) of 
the Charter, namely: limitations must be provided 
for by law, must genuinely meet objectives of gen-
eral interest recognised by the Union or the need to 
protect the rights and freedoms of others, respect 
the essence of the right, and be proportionate.

To be lawful, it must be possible to subsume any 
deprivation of liberty under one of the grounds listed 
in Article 5 of the ECHR, as interpreted by the Euro-
pean Court of Human Rights (ECtHR), which – pur-
suant to Articles 6 (3) of the Treaty on European 
Union and 52 (3) of the Charter – has to guide the 
interpretation  of  the  right  to  liberty  and  security 
set forth in Article 6 of the Charter. 

Taken together, under EU law and the ECHR, dep-
rivation of liberty for immigration-related reasons 
can only be a measure of last resort, and an assess-
ment needs to be made in each individual case to 
determine whether all pre-conditions required to 
prevent  arbitrary  detention  are  fulfilled.  Specific 
safeguards against arbitrary detention are included 
in the EU return and asylum acquis: Article 15 of the 
Return Directive (2008/115/EC) allows detention only 
in order to prepare the return and/or carry out the 
removal process,15 and Article 8 of the Reception 
Conditions Directive (2013/33/EU) lists six exhaustive 
grounds justifying the detention of asylum seekers. 

Detention to prevent 
unauthorised entry of or to 
deport or extradite a person

The ECtHR has usually analysed the deprivation of 
liberty of asylum seekers or migrants in an irregular 

situation in the frame of Article 5 (1) (f) of the ECHR, 
which permits detention to prevent unauthorised 
entry or for the purpose of deporting or extradit-
ing a person. Detention is only allowed where all 
pre-conditions required to prevent arbitrary deten-
tion are fulfilled. These apply both when a person is 
detained to prevent unauthorised entry or to effect 
his  or  her  removal:  detention  must  be  provided 
for in national law in a sufficiently accessible, pre-
cise and foreseeable manner;  authorities have to 
act in good faith and must show due diligence (in 
clarifying whether the foreigner can enter or when 
preparing and implementing the return); the place 
and  conditions  of  detention  should  be  appropri-
ate;  the length of the detention should not exceed 
that reasonably required for the purpose pursued;16 
and, in case of pre-removal detention, there must 
be a realistic prospect for removal.17 By and large, 
these pre-conditions are also included in secondary 
EU law.18 This clearly indicates that the refusal of 
an individual to give fingerprints for Eurodac can-
not per se justify deprivation of liberty under Arti-
cle 5 (1) (f) of the ECHR, and would only be one of 
several  factors  to  consider  in  assessing  whether 
the conditions for deprivation of liberty are met. 
Article 5 (1) (f) of the ECHR cannot be used to pun-
ish a person for not giving his or her fingerprints,19 
nor to pressure a person to give his or her finger-
prints, as such scenario falls under Article 5 (1) (b) 
of the ECHR.  

Detention to fulfil an 
obligation prescribed by law

Article 5 (1) (b) of the ECHR allows the lawful arrest 
or detention of a person for non-compliance with 
the  lawful  order  of  a  court  or  in  order  to  secure 
the fulfilment of any obligation prescribed by law 
(Beugehaft). In this case, detention must be a meas-
ure of last resort and be aimed only at fulfillment 
of the obligation; it must not be punitive, and the 
detention needs to cease the moment this obliga-
tion is fulfilled.20

Articles 9 (1), 14 (1) and 29 (1) (d) of the Eurodac 
Regulation  characterise  the  collection  of  finger-
prints as an obligation of Member States, and not 
as a duty for asylum applicants and apprehended 
migrants. However, the Eurodac Regulation, taken 
together with corresponding legislation at national 
level, clearly gives authorities the right to take fin-
gerprints from asylum seekers and apprehended 

6

a language they understand – to understand  the 
rationale for collecting fingerprints, the manner in 
which fingerprints will be processed and the con-
sequences for not giving fingerprints, so that they 
can make an informed decision. 

Balancing the right to liberty 
and the fulfillment of an 
obligation prescribed by law

There must be a balance between the right to lib-
erty and the fulfilment of the obligation under Arti-
cle 5 (1) (b).23 Factors to consider when drawing such 
a balance include the nature of the obligation arising 
from the relevant legislation, including its underly-
ing object and purpose; the person being detained 
and the particular circumstances leading to deten-
tion; and the length of the detention.24 

At the same time, given the vulnerability of asylum 
seekers and migrants in an irregular situation, pres-
suring people to give their fingerprints must under 
no circumstances lead to a risk of traumatisation or 
re-victimisation. This means that detention under 
Article 5 (1) (b) of the ECHR must remain an excep-
tional measure that is applied taking into account 
the physical and mental conditions of the person. 
Individuals exhibiting signs that they might be vic-
tims of torture, sexual or gender-based violence, vic-
tims of other serious crimes, and traumatised peo-
ple should not be subjected to it, nor should  people 
usually considered vulnerable in light of Article 21 
of the Reception Conditions Directive and 3 (9) of 
the Return Directive. No detention should be used 
for children who are obliged to provide fingerprints, 
i.e. those aged 14–17 years. 

Finally, detention can only be resorted to for a short 
period of time: the ECtHR deemed excessive the 
detention of a women accused of travelling with-
out a valid ticket, who was subsequently held by 
the police to verify her identity for 13-and-a-half 
hours,25 but accepted 45 hours of detention to carry 
out security checks on entering the United King-
dom, an obligation introduced to prevent terrorism.26

migrants, and imposes a corresponding duty to pro-
vide fingerprints.21 In fact, without the duty of for-
eigners to provide fingerprints, a state could not 
implement the regulation.

In addition to the ECHR, Article 52 (1) of the Char-
ter requires that limitations on fundamental rights 
–including limitations on the right to liberty –  be 
provided for by law. While the Eurodac Regulation 
obliges Member States to collect fingerprints, it does 
not indicate whether the deprivation of liberty can 
be used to comply with that obligation. Whether it 
is lawful to detain  a foreigner to convince him or 
her to provide the required fingerprints depends on 
the existence of a clear provision in national law 
that makes it possible to predict, in an accessible, 
precise and foreseeable manner, that not providing 
fingerprints will result in the deprivation of liberty. 

As noted in the introduction, where persons have 
no documents,  taking fingerprints for Eurodac may 
in specific circumstances also allow states to ver-
ify or determine the identity of a person, particu-
larly once there is a match with another Member 
State  and  information  is  exchanged.  For  asylum 
seekers, Article 8 (3) (a) of the Reception Condi-
tions Directive (2013/33/EU) envisages the possibil-
ity of deprivation of liberty – provided all conditions 
set forth in EU law and in the ECHR are fulfilled – in 
order to determine or verify an applicant’s identity 
or nationality. For migrants in an irregular situation, 
the absence of cooperation with efforts to deter-
mine  identity – which for undocumented migrants 
may include the refusal to provide fingerprints – is 
a criteria frequently used by EU Member States to 
establish whether there is a risk of absconding as 
per Article 3 (7) and Recital 6 of the Return Directive, 
which may justify detention under Article 15 (1) of 
this directive. However, the refusal to provide fin-
gerprints is only one element to take into account 
when determining whether the grounds for dep-
rivation of liberty set forth in EU law are fulfilled 
in a particular  case. It cannot be the sole basis for 
automatically allowing the deprivation of liberty. 

Regarding “compliance with a lawful order of the 
court” under 5 (1) b of the ECHR, the ECtHR has stated 
that a person needs to have a chance to comply vol-
untarily. Past refusals to comply are not sufficient 
to justify someone’s detention without providing a 
new opportunity to comply before resorting to the 
deprivation of liberty.22 Detention is therefore only 
lawful if a person had a chance to comply volun-
tarily and clearly refused to do so. Foreigners have 
often fled their own country fearing for their lives, 
and face language and cultural communication barri-
ers, making them particularly vulnerable. Therefore, 
offering such individuals an opportunity to comply 
voluntarily requires that they areput in a position 
– through effective information and counselling in 

FRA Focus

7

Fundamental rights implications of the obligation to provide fingerprints for Eurodac

Using force to obtain fingerprints 

The third question examined in this note concerns 
the use of force to obtain fingerprints for Eurodac. 
In simple terms, the use of force can be defined as 
the use of physical or psychological force to over-
come  resistance,  for  example  by  forcefully  plac-
ing  an  individual’s  open  hand  on  the  fingerprint 
scanner. In such cases, the people concerned are 
no longer given the chance to comply – as is the 
case when they are detained – but are physically 
forced to provide their fingerprints. This is a most 
intense form of interference with a person’s fun-
damental rights. Given the vulnerability of the peo-
ple concerned and the pre-conditions that need to 
be fulfilled, it is difficult to imagine a situation in 
which  using  force to obtain fingerprints for Euro-
dac would be justified. 

Risk of inhuman or degrading 
treatment or punishment

The use of force to obtain fingerprints may in spe-
cific circumstances meet the threshold of inhuman 
or degrading treatment or punishment prohibited 
by Article 4 of the Charter and Article 3 of the ECHR. 
The prohibition of torture, inhuman or degrading 
treatment or punishment is absolute, meaning that 
any use of force that reaches the threshold prohib-
ited by Article 3 of the ECHR  will always be unlaw-
ful. A number of factors have to be considered to 
determine whether that threshold is met.

All use of force that is excessive and has not been 
made strictly necessary by a person’s own conduct 
diminishes human dignity and hence amounts to 
inhuman or degrading treatment or punishment as 
prohibited by Article 4 of the Charter and Article 3 
of the ECHR.27 Actions that cause feelings of fear, 
anguish  or  inferiority  capable  of  humiliating  and 
debasing a person are always prohibited by Arti-
cle 3 of the ECHR.28 In assessing whether the con-
duct by a public authority attains a minimum level 
of severity to come within the scope of Article 3, 
attention must be paid to all surrounding circum-
stances. The ECtHR attaches particular importance 
to injuries caused to persons who were subject to 
physical force,29 which means that techniques that 
pose a danger to the foreigner’s physical integrity 
and health must be avoided. Furthermore, use of 
force which aims to punish an individual for not giv-
ing his or her fingerprints would never be allowed.

The use of force must be lawful. This means that 
the use of force has to be provided for by law – not 
just in an internal instruction. Such law must be suf-
ficiently precise to enable a person to understand 
it and predict its application in practice. 

When assessing whether the use of force attains 
the minimum level of severity required by Article 3 
of the ECHR, attention must be paid to the fact that 
– contrary to situations in which breath and blood 
tests are taken to prevent or investigate criminal 
offences30 – asylum seekers and migrants in an irreg-
ular situation are not crime suspects and are often 
in a particularly vulnerable position. The ECtHR has 
paid increasing attention to the vulnerability of the 
persons concerned to human rights violations, and 
requires a higher threshold for the use of force in 
such cases. When a person is deprived of liberty 
– which is often the case for persons apprehended 
after  unauthorised  border  crossings  –  the  use  of 
physical force against such person violates Article 
3 of the ECHR whenever it is not made strictly nec-
essary by the individual’s behaviour.31 

When  dealing  with  persons  under  the  control  of 
the  police,  the  ECtHR  has  characterised  coercive 
measures as not excessive only in specific circum-
stances, such as in the case of physical resistance 
or violent behaviour, passive resistance when being 
summoned, attempts to escape or the refusal of a 
detainee to undergo a search.32 

For the use of force not to be considered exces-
sive, the foreigner must have been given a realistic 
opportunity to comply with the fingerprinting obli-
gation. The person must be thoroughly informed, 
prepared and been given enough time to decide 
whether or not to give his or her fingerprints. Com-
pliance should normally be achieved through the 
provision  of  adequate  information  and  effective 
counselling. This will limit the question of whether 
coercive measures should be used to take finger-
prints to exceptional cases. 

The use of force would also not be justified to retake 
fingerprints that have already been obtained from 
the  applicant  by  national  authorities  for  another 
procedure,33 if these can be re-used. Furthermore, 
techniques that will not make it likely that the taken 
fingerprints will serve their purpose, are not allowed. 
If some or all of the existing techniques to obtain 
fingerprints by force result in a substantial likelihood 
of low-quality – and therefore unusable – finger-
prints, it becomes difficult to conclude that resort-
ing to the use of force is necessary. For example, 
the Dutch Ombudsman noted that opening an ath-
lete’s fist to obtain fingerprints by force resulted in 
non-usable fingerprints.34 

8

Right to the integrity of  
the person

Use of force that does not amount to inhuman or 
degrading treatment or punishment prohibited by 
Article 4 of the Charter and Article 3 of the ECHR can 
still raise fundamental rights concerns, particularly 
in light of Article 3 of the Charter, which enshrines 

the right of everyone to respect his or her physical 
and mental integrity. When force is used to com-
pel a person to do something, the circumstances 
of each individual case must be assessed  to deter-
mine whether the use of force was necessary and 
proportionate, and would thus still constitute law-
ful interference in light of the standards set forth 
in Article 52 (1) of the Charter.

Conclusions

In general, an interference with someone’s funda-
mental rights must not outstrip the importance of 
the aim pursued. Respecting the principle of propor-
tionality implies using less invasive means when-
ever possible, including providing information and 
counselling, reaching out to the migrant commu-
nity concerned, or using other evidence for Dub-
lin purposes.

Asylum seekers and migrants in an irregular situ-
ation apprehended in connection with their irreg-
ular entry have a duty to provide fingerprints for 
Eurodac. Compliance with this obligation should pri-
marily  be  secured  through  effective  information 
and counselling, carried out individually as well as 
through outreach actions targeting migrant com-
munities, such as focus group discussions, informa-
tion sessions and similar initiatives. To be effective, 
information should be provided through appropriate 
means, in a language  people understand, and tak-
ing into account gender and cultural considerations.

Refusal to provide fingerprints does not affect Mem-
ber  States’  duty  to  respect  the  principle  of  non-
refoulement. Therefore, threats of deportation can-
not be used to enforce the duty to give fingerprints.

The use of detention to pressure persons to give 
their fingerprints must remain an exceptional meas-
ure. It can only be considered  when this possibil-
ity is provided for under national law, and must be 
aimed only at fulfillment of the obligation to pro-
vide  fingerprints;  it  must  not  be  punitive,  should 
be of limited duration, and cease the moment the 
obligation is fulfilled. Before authorities resort to 
detention  to  obtain  fingerprints,  asylum  seekers 
and migrants in an irregular situation need to be 
provided an effective opportunity to comply with 
the fingerprinting requirements. Children, suspected 
victims of torture, sexual or gender-based violence, 
victims of other serious crimes, as well as trauma-
tised people should not be coerced into giving fin-
gerprints, nor should other people usually consid-
ered to be vulnerable.

Given the vulnerability of the people concerned and 
the obligation to use the least invasive means, it is 
difficult to imagine a situation in which using physi-
cal or psychological force to obtain fingerprints for 
Eurodac would be justified. 

FRA Focus

9

Fundamental rights implications of the obligation to provide fingerprints for Eurodac

 Regulation (EC) No. 767/2008 of the European Parliament and of the Council of 9 July 2008 concerning the Visa Information System (VIS) 
and the exchange of data between Member States on short-stay visas (VIS Regulation).
 See European Migration Network (EMN) (2014), Ad-hoc query on Eurodac fingerprinting, 22 September 2014; General Secretariat of the 
Council of the European Union, Meeting document to Delegations, Best practices for upholding the obligation in the Eurodac Regulation to 
take fingerprints, DS 1491/14, 30 October 2014.
 European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social 
Committee and the Committee of the Regions: A European Agenda for Migration, COM(2015) 240 final, 13 May 2015.
 European Commission, Implementation of the Eurodac Regulation as regards the obligation to take fingerprints, Commission Staff Working 
Document, SWD(2015) 150 final, 27 May 2015.
 European Council of Refugees and Exiles, Comments on the European Commission Staff Working Document “on Implementation of the 
Eurodac Regulation as regards the obligation to take fingerprints”, June 2015; and Statewatch, Briefing – Coercive measures or expulsion: 
Fingerprinting migrants, May 2015.
 ECtHR, S. and Marper v. United Kingdom [GC], paras: 68 and 84; CJEU, M. Schwarz v. Stadt Bochum, C-291/12, paras. 26–27.
 FRA (2011), The duty to inform applicants about asylum procedures: The asylum seeker perspective, Luxembourg, Publications Office, p. 30.
 Ibid., pp. 20 and 29–31.
 This provision implements in EU law Article 33 (2) of the 1951 UN Convention Relating to the Status of Refugees. It contains exceptions 
regarding refugees who constitute a danger to the security of a country or being convicted in final instance for a particularly serious crime, 
or constitute a danger to the community. 
 See ECtHR, Hirsi Jamaa and Others v. Italy [GC], No. 27765/09, 23 February 2012, para. 133. Also, the non-refoulement provisions included in 
Articles 4 and 5 of the Return Directive (2008/115/EC) applies to all migrants in return proceedings.
 For more information on the fundamental rights applicable to irregular migrants, see: FRA (2011), Fundamental rights of migrants in an 
irregular situation in the European Union, Luxembourg, Publications Office; and United Nations Office of the High Commissioner for Human 
Rights (2014), The economic, social and cultural rights of migrants in an irregular situation, New York and Geneva.
 For an overview of the procedural safeguards in asylum and return procedures, see Chapter 4 of FRA/ECtHR (2014), Handbook on European 
law relating to asylum, borders and immigration, Luxembourg, Publications Office.
 UNHCR, Conclusions of the Executive Committee of the UNHCR Programme, Conclusion No. 30 (XXXIV) of 1983. UNHCR, Summary of 
UNHCR’s Provisional Observations on the Proposal for a Council Directive on Minimum Standards on Procedures in Member States for 
Granting and Withdrawing Refugee Status, March 2005. UNHCR, UNHCR Central Mediterranean Sea Initiative (CMSI) – Proposal for a 
‘Response Package for Protection at Sea‘, October 2014.
 See, mutatis mutandis, ECtHR, Van Geyseghem v. Belgium [GC], No. 26103/95, 21 January 1999, para. 33, where the court clarified that a 
defendant cannot lose the benefit of the rights of the defence because he or she failed to attend a hearing on his or her case: “in spite of 
having been properly summoned, does not appear, cannot – even in the absence of an excuse – justify depriving him of his right under 
Article 6 § 3 of the Convention to be defended by counsel”.
 Under Article 2 (2) (a) of the Return Directive, Member States have, however, the possibility to opt not to apply the directive to those 
persons who are “apprehended or intercepted by the competent authorities in connection with the irregular crossing by land sea or air of 
the external border”, an option of which a number of Member States are making use.
 ECtHR, Saadi v. the United Kingdom [GC], No. 13229/03, 29 January 2008, para. 74; ECtHR, Suso Musa v. Malta, No. 42337/12, 23 July 2013, 
para. 98.
 ECtHR, Mikolenko v. Estonia, No. 10664/05, 8 October 2009, para. 67. 
 See Section 6.6 of FRA-ECtHR, Handbook on European law relating to asylum, borders and immigration, Luxembourg, Publications Office. 
 ECtHR, A. and Others v. the United Kingdom [GC], No. 3455/05, 19 February 2009, para. 171, where the court bans the use of Article 5 (1) (f) to 
deal with terrorism threats.
 ECtHR, Vasileva v. Denmark, No. 52792/99, 25 September 2003, para. 36.
 See, for example, Austria, BFA-Procedure Law (BFA-Verfahrensgesetz), para. 42, www.ris.bka.gv.at; Bulgaria, Asylum and Refugees Act 
(Закон за убежището и бежанците), 31 May 2002, Art. 30 (9), http://lex.bg/laws/ldoc/2135453184; Malta, Subsidiary Legislation 420.03, 
Asylum Procedures (Means of Facilitating Identification of applicant) Regulations, 29th October, 2001, Legal Notice 254 of 2001; Sweden, 
Alien Act (Utlänningslag (2005:716)), Chapter 9, Section 8.
 ECtHR, Petukhova v. Russia, No. 28796/07, paras. 58–59.
 ECtHR, Göthlin v. Sweden, No. 8307/11, 16 October 2014, para. 58.
 ECtHR, Petukhova v. Russia, No. 28796/07, paras. 58–59; and Vasileva v. Denmark, No. 52792/99, 25 September 2003, para. 38.
 ECtHR, Vasileva v. Denmark, No. 52792/99, 25 September 2003, para. 41.
 European Commission of Human Rights, McVeigh and others v. United Kingdom, No. 8022/77, 8025/77 and 8027/77.
 See, for example: ECtHR, Dembele v. Switzerland, No. 74010/11, 24 September 2013, para. 41 (identity check); ECtHR, Rehbock v. Slovenia, No. 
29462/95, 28 November 2000, para. 73-78, and Altay v. Turkey, No. 22279/93, para. 54, 22 May 2001 (both on excessive use of force during 
arrest).
 ECtHR, Kudla v. Poland [GC], No. 30210/96, para. 92. See also Raninen v. Finland, 16 December 1997, para. 55, and Peers v. Greece, No. 
28524/95, para. 74, Gäfgen v. Germany, judgment [GC] of 1 June 2010 at 103.
 For example, ECtHR, R.L. et M.-J.D., R.L. et M.-J.D. v. France, No. 44568/98, 19 May 2004, para. 68, and Rehbock v. Slovenia, No. 29462/95, 28 
November 2000, para. 72.
 ECtHR, Saunders v. the United Kingdom [GC], No. 19187/91, 17 December 1996, paras. 68
 EctHR, Ribitsch v. Austria, No. 18896/91, 4 December 1995, para. 38 and Tekin v. Turquie, No. 52/1997/836/1042, 9 June 1998, paras. 52
 ECtHR, Dembele v. Switzerland, No. 74010/11, 24 September 2013, para. 42; ECtHR, Klaas v. Germany, No. 15473/89, 22 September 
1993, para. 30; ECtHR, Sarigiannis v. Italy, No. 14569/05, 5 April 2011, para. 61; ECtHR, Milan c. France, No. 7549/03, 24 January 2008, 
para. 59; ECtHR, Caloc v. France, No. 33951/96, 20 July 2000, paras. 100
paras.119
 Netherlands, National Ombudsman of the Netherlands (Nationale Ombudsman) (2010), Report No. 2010/267, The Hague, National 
Ombudsman, https://www.nationaleombudsman.nl/rapporten/2010/267.
 Ibid.

101; ECtHR, Borodin v. Russia, No. 41867/04, 6 November 2012, 

121.

69. 

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Further information:
An overview of the FRA project on biometric data in large information technologies (IT) systems in the field of borders, immigration 
and asylum activities is available at:  
http://fra.europa.eu/en/project/2014/biometric-data-large-eu-it-systems-areas-borders-visa-and-asylum-fundamental-rights.

The following FRA reports examine various aspects of and case law related to asylum, borders and immigration into the EU:

•  FRA-ECtHR (2013), Handbook on European law relating to asylum, borders and immigration, Luxembourg, Publications Office, 

http://fra.europa.eu/en/publication/2013/handbook-european-law-relating-asylum-borders-and-immigration.

•  FRA (2011), Fundamental rights of migrants in an irregular situation in the European Union, Luxembourg, Publications Office,  

http://fra.europa.eu/en/publication/2012/fundamental-rights-migrants-irregular-situation-european-union. 

•  FRA (2011), The duty to inform applicants about asylum procedures: The asylum seeker perspective, Luxembourg, Publications Office,  

http://fra.europa.eu/en/publication/2010/duty-inform-applicants-about-asylum-procedures-asylum-seeker-perspective. 

•  FRA (2010), Detention of third-country nationals in return procedures, Luxembourg, Publications Office,  

http://fra.europa.eu/en/publication/2010/detention-third-country-nationals-return-procedures.

FRA – EUROPEAN UNION AGENCY FOR  FUNDAMENTAL RIGHTS

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Tel: +43 158030-0 – Fax: +43 158030-699
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© European Union Agency for Fundamental Rights, 2015

Print: ISBN 978-92-9491-006-6, doi:10.2811/08950
PDF: ISBN 978-92-9491-007-3, doi:10.2811/953900

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