CEDH · CASELAW;CLIN;ENG — 11 juin 2020

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Germany - 74440/17 Judgment 11.6.2020 [Section V] Article 8 Article 8-1 Respect for private life Five-year retention of photographs, description of the person, finger and palm prints of a repeat offender, subject to safeguards and individualised review: no violation Facts – Following the opening of criminal proceedings against the applicant, a repeat offender, for handling stolen goods, the police ordered the collection of his identification data (photographs, fingerprints and palm prints). A description of his person was also drawn up for the police records. The criminal proceedings in issue were subsequently discontinued for lack of proof. Law – Article 8: The taking and storage of various types of personal data had amounted to an interference with the applicant’s right to respect for his private life. In particular, the taking of palm prints constituted a measure which, both in its intensity and as regards the possible future use of the data obtained, was very similar to the taking of fingerprints. Therefore, the same considerations had to apply. The physical description of the applicant and its inclusion in the police records for future identification purposes had to be considered comparable to the taking of a photograph, albeit less intrusive. Article 8 was therefore likewise applicable to that measure. The impugned interference had been in accordance with the law and served the purpose of the prevention of crime as well as the protection of the rights of others, namely by facilitating the investigation of future crimes. For the following reasons, the impugned measure had struck a fair balance between the competing public and private interests and therefore fell within the respondent State’s margin of appreciation. In particular, the domestic courts had conducted an individualised assessment of whether it was likely that the applicant might reoffend in the future. Even though the applicant had not been found guilty of a particularly serious offence, he had been convicted on numerous occasions and some of his offences were sufficiently serious for terms of imprisonment to be imposed on him. The present case differed in that respect from cases such as S. and Marper v. the United Kingdom or M.K. v. France , as in those two cases, there had not been any previous convictions to be taken into account in the decision to collect the data in question. Moreover, criminal investigations had been opened repeatedly against the applicant, including in the years preceding the order for the collection of identification data. The Court could therefore accept that those discontinued proceedings, none of which had ended with the domestic authorities’ finding that the applicant had been innocent and in the absence of any indication that they had been instituted arbitrarily, were also relevant, to a very limited extent, in that assessment. Furthermore, the domestic courts had included his physical condition (the restrictions on his mobility caused by his rheumatoid arthritis) in their overall assessment and expressly found that the applicant’s previous offences had not necessitated much physical movement. In accordance with domestic law, the outcome of the proceedings underlying the police order in issue was not relevant for the decision to collect and store the applicant’s data. Moreover, two years after the impugned measure, the applicant had again been found guilty of an offence. For the assessment of the proportionality of the interference, it was important that the collection and retention of the identification data here in issue – photographs, fingerprints, palm prints and a description of the person – had constituted a less intrusive interference than the collection of cellular samples and the retention of DNA profiles, which contained considerably more sensitive information. As regards the duration of retention of the identification data in question, the relevant domestic law provided for specific deadlines for review of whether the continued storage of the data was still necessary. The purposes of the storage, as well as the type and significance of the reason for the storage, had to be taken into account in the assessment thereof. In a case like that of the applicant – an adult offender whose offences were neither of minor nor of special significance as defined by the relevant directive – personal data were to be deleted, as a rule, after five years, if there were no fresh criminal investigation proceedings against the applicant in that period. Therefore, the applicant could obtain the deletion of his data from the police register if his conduct showed that the data were no longer needed for the purposes of police work. The present case thus differed from cases such as S. and Marper and Gaughran v. the United Kingdom , which concerned the indefinite retention of data, or M.K. v. France , where it had been found that in practice data were retained for twenty-five   years. Moreover, in the instant case there was a possibility of review – by the police authorities, subject to judicial review – of the necessity of further retaining the data in question. There was nothing to indicate that the identification data were insufficiently protected against abuse such as unauthorised access or dissemination. In view of the relatively limited intrusiveness and duration of the collection as such of the identification data in question, the limited effect of the retention of the data in an internal police database on the applicant’s daily life, and the presence of safeguards, the impugned measure had constituted a proportionate interference with the applicant’s right to respect for his private life. Conclusion : no violation (unanimously).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes