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(33)
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The use of those systems for the purpose of law enforcement should therefore
be prohibited, except in exhaustively listed and narrowly defined situations, where the use is
strictly necessary to achieve a substantial public interest, the importance of which
outweighs the risks. Those situations involve the search for certain victims of crime including
missing persons; certain threats to the life or to the physical safety of natural persons or of
a terrorist attack; and the localisation or identification of perpetrators or suspects of
the criminal offences listed in an annex to this Regulation, where those criminal offences are
punishable in the Member State concerned by a custodial sentence or a detention order
for a maximum period of at least four years and as they are defined in the law of that
Member State. Such a threshold for the custodial sentence or detention order in accordance
with national law contributes to ensuring that the offence should be serious enough to
potentially justify the use of ‘real-time’ remote biometric identification systems. Moreover,
the list of criminal offences provided in an annex to this Regulation is based on the 32
criminal offences listed in the Council Framework Decision 2002/584/JHA (18), taking into account that some of those
offences are, in practice, likely to be more relevant than others, in that the recourse to
‘real-time’ remote biometric identification could, foreseeably, be necessary and proportionate
to highly varying degrees for the practical pursuit of the localisation or identification of
a perpetrator or suspect of the different criminal offences listed and having regard to the
likely differences in the seriousness, probability and scale of the harm or possible negative
consequences. An imminent threat to life or the physical safety of natural persons could also
result from a serious disruption of critical infrastructure, as defined in Article 2,
point (4) of Directive (EU) 2022/2557 of the European Parliament and of the Council (19), where the disruption or destruction of such
critical infrastructure would result in an imminent threat to life or the physical safety of
a person, including through serious harm to the provision of basic supplies to the
population or to the exercise of the core function of the State. In addition, this Regulation
should preserve the ability for law enforcement, border control, immigration or asylum
authorities to carry out identity checks in the presence of the person concerned in accordance
with the conditions set out in Union and national law for such checks. In particular, law
enforcement, border control, immigration or asylum authorities should be able to use information
systems, in accordance with Union or national law, to identify persons who, during an identity
check, either refuse to be identified or are unable to state or prove their identity, without
being required by this Regulation to obtain prior authorisation. This could be, for example,
a person involved in a crime, being unwilling, or unable due to an accident or
a medical condition, to disclose their identity to law enforcement authorities.
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