Collection and retention by police of non sensitive personal data of a criminal did not violate the right to privacy

JUDGMENT

Ρ.Ν. v. Germany  11.06.2020 (no. 74440/17)

see here  

SUMMARY

Personal data and police investigation. The applicant had previously been convicted of several serious offenses. A criminal prosecution was ordered again for accepting and disposing of the proceeds of crime, and the police issued an order to collect photographs of the applicant and fingerprints and palm prints for future use. The applicant’s objections to the breach of personal data were rejected and the Constitutional Court did not examine his request.

The Court reminds that the collection of personal data of suspects must be in accordance with the law. National legislation must provide adequate legal protection against arbitrariness and clearly state the scope of the discretion provided to the competent authorities and the manner in which it is exercised.

The ECHR in the present case, separated the gravity of the personal data and considered as simple the personal data of the photo and the fingerprints while the cellular DNA data as particularly sensitive.

It considered that the “intrusiveness” of the applicant’s private life was limited, not causing him anxiety and embarrassment but was mainly necessary in a democratic society because aimed at future research. No violation of Article 8 because a fair balance has been struck between private and public interests.

PROVISION

Article 8

PRINCIPAL FACTS

The applicant, Mr P.N., is a German national who was born in 1961 and lives in Dresden (Germany).
The case concerned a police order to collect information to identify the applicant, such as
photographs of his face and body, including possible tattoos, as well as finger and palm prints.

In August 2011 the Dresden police, relying on the Code of Criminal Procedure, ordered the gathering
of the identification data as criminal proceedings had been opened against the applicant for
receiving and handling stolen goods. He also had a previous criminal record and in the police’s view
the identification measures would help in the investigation of any future offences.

The applicant appealed against the order but in May 2012 the Dresden police dismissed the appeal,
while in March 2015 the Dresden Administrative Court dismissed a further appeal. Referring to his
previous record, the court found that under the Code of Criminal Procedure it was legal to collect
someone’s data if there was a possibility that it might be needed for a future investigation. That was
the case even if the proceedings for the handling of stolen goods had been discontinued, as they had
been in June 2012.

In May 2017 the Federal Constitutional Court declined to consider a constitutional complaint by the
applicant. The police had already collected the data in question, in March 2017.

The applicant complained that the police order to collect identification data from him had violated
his rights protected by Article 8 (right to respect for private and family life, the home and
correspondence) of the European Convention on Human Rights.

THE DECISION OF THE COURT…

a)   Whether there was an interference

The Court reiterates that the concept of private life extends to aspects relating to personal identity, such as a persons photograph. The right to the protection of ones image presupposes the individuals right to control the use of that image. The taking of a persons photograph and its retention in a police database with the possibility of it being processed automatically constitutes an interference with the right to respect for private life under Article 8 of the Convention.

The taking and storage on the national authorities records of the fingerprints of an identified or identifiable individual also amounts to an interference with that persons right to respect for private life.

Likewise, the storing by a public authority of information relating to an individuals private life, such as contact details of convicted persons, is an interference with that right.

In the present case, the police ordered that photographs as well as fingerprints and palm prints be taken from the applicant and a description of his person be drawn up for the police records; this was designed to serve future identification purposes. That order was subsequently executed. The Court, having regard to its case-law, considers that the taking and storage of these various types of personal data amount to interference with the applicants right to respect for his private life. This was indeed not contested by the Government.

The Court finds, in particular, that the taking of palm prints constitutes a measure which, both in its intensity and as regards the possible future use of the data obtained, is very similar to the taking of fingerprints; therefore, the same considerations must apply. The physical description of the applicant and its inclusion in the police records for future identification purposes must be considered comparable to the taking of a photograph, albeit less intrusive. However, as the Court has previously considered that even the storing of contact details of a convicted offender by a public authority was an interference with the individuals right to respect for private life, Article 8 is likewise applicable to the applicants physical description and its inclusion in the police records.

(b)Whether the interference pursued a legitimate aim

The collection of identification data from persons such as the applicant served the prevention of crime as well as the protection of the rights of others, namely by facilitating the investigation of future crimes. It therefore pursued legitimate aims for the purposes of Article 8 § 2 of the Convention.

(ii) Whether the interference was “necessary in a democratic society”

(1) General principal

The need for such safeguards is all the greater where the protection of personal data undergoing automatic processing is concerned, not least when such data are used for police purposes. The domestic law should notably ensure that such data are relevant and not excessive in relation to the purposes for which they are stored, and preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored. The domestic law must also afford adequate guarantees that retained personal data are efficiently protected from misuse and abuse. The above considerations are especially valid as regards the protection of special categories of more sensitive data 

 (2)Application of these principles to the present case

In determining whether the impugned collection and storage of identification data from the applicant, which pursued the aims of the prevention of offences and of the protection of the rights of others, was proportionate to the aims pursued, the Court observes, firstly, that the police and the domestic courts had to take into account the nature and gravity of the offences previously committed by the applicant in their decision to collect and store identification data from him

Domestic authorities have taken into account several cases of criminal prosecution for offenses such as assault, damage to foreign property and fraud, while giving less weight to these proceedings.

According to domestic authorities, these latest procedures were taken into account in their precautionary assessment of whether they were likely to be suspected of another crime in the future.

While the Court accepts that the applicant has not been found guilty of a particularly serious offense, he can only point out that domestic courts have repeatedly convicted him and that some of his offenses were serious enough to result in his imprisonment. imposed.

In the assessment of the proportionality of the disputed measure, the Court also considered it important that the collection and preservation of such identification data – photographs, fingerprints, palm prints and descriptions of the individual – constitute a less intrusive infringement of his right to respect. his private life, especially from the collection of cellular samples and the maintenance of DNA profiles, which contain significantly more sensitive information.

In view of the relatively limited intrusiveness and duration of the collection as such of the identification data in question and the limited effect of the retention of the data in an internal police database on the applicants daily life, the Court, having regard to the material before it, further considers that the applicant failed to substantiate that his state of health  has been affected by the stress and unease caused by the impugned measure.

The Court further notes that there is nothing to indicate, and the applicant has not argued, that the identification data taken from him and stored by the police were insufficiently protected against abuse such as unauthorised access or dissemination.

Having regard to the foregoing considerations, the Court concludes that the reasons adduced by the national authorities to justify the interference with the applicants right to respect for his private life by the taking and storage of personal data from him were “relevant and sufficient”. The collection and storage of these data in the present case struck a fair balance between the competing public and private interests and therefore fell within the respondent States margin of appreciation. Accordingly, the impugned measure constituted a proportionate interference with the applicants right to respect for his private life and can be regarded as necessary in a democratic society. It was therefore justified in accordance with Article 8 § 2.

There has accordingly been no violation of Article 8 of the Convention.

 


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