CEDH · CASELAW;CLIN;ENG — 18 avril 2013

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France - 19522/09 Judgment 18.4.2013 [Section V] Article 8 Article 8-1 Respect for private life Absence of safeguards for collection, preservation and deletion of fingerprint records of persons suspected but not convicted of criminal offences: violation   Facts – In 2004 and 2005 the applicant was the subject of two investigations into the theft of some books. He was acquitted following the first set of proceedings and the second set of proceedings was discontinued. On both occasions his fingerprints were taken and recorded in the fingerprints database. In 2006 the applicant requested that his prints be deleted from the database. His request was granted only in relation to the prints taken during the first set of proceedings. The appeals lodged by the applicant were dismissed. Law – Article 8: The consultation procedures in relation to the impugned measure were sufficiently well defined. The same was not true of the procedures for the gathering and retention of the data. The purpose of the database, notwithstanding the legitimate aim pursued – namely, the detection and prevention of crime – necessarily implied the addition and retention of as many entries as possible. Furthermore, the reason invoked by the public prosecutor for refusing to delete the fingerprints taken during the second set of proceedings had been the need to safeguard the applicant’s interests by ensuring that his involvement could be ruled out should someone attempt to assume his identity. Besides the fact that the decree concerning the fingerprints database, unless it was interpreted particularly broadly, contained no express reference to such grounds, accepting the argument as to the supposed protection against potential identity theft by third persons would be tantamount in practice to permitting the storage of data concerning the entire French population, a measure that would clearly be excessive and redundant. Furthermore, in addition to the primary purpose of the database, which was to make it easier to trace and identify the perpetrators of serious crimes and other major offences, the legislation referred to a second purpose, namely “to facilitate the prosecution, investigation and trial of cases before the judicial authority”. It was not stated clearly that this related solely to serious crimes and other major offences. Since the legislation referred also to “persons implicated in criminal proceedings who need to be identified”, it could in practice be applied to all offences, including minor ones, in so far as this would enable the perpetrators of serious crimes and other major offences to be identified. In any event, the circumstances of the case, which concerned proceedings for book theft which had been discontinued, testified to the fact that the legislation was applied to minor offences. The present case was thus clearly distinguishable from those relating specifically to serious offences such as organised crime or sexual assault. Furthermore, the decree in question did not make any distinction based on whether or not the person concerned had been convicted by a court or had even been prosecuted. In its judgment in S. and Marper , the Court had stressed the risk of stigmatisation stemming from the fact that persons who had been acquitted or whose case had been discontinued – and who were thus entitled to the presumption of innocence – were treated in the same way as convicted persons. The situation in the present case was similar in that respect, as the applicant had been acquitted in the first set of proceedings and the charges in the second set of proceedings had been dropped. In addition, the provisions of the impugned decree governing the retention of data did not afford sufficient protection to the persons concerned. First of all, the right to apply to a judge at any time to have the data deleted was liable to come into conflict, to use the words of the liberties and detention judge, with the interests of the investigating services, who needed a database with as many entries as possible. Accordingly, as the interests at stake were – at least partly – contradictory, the deletion of the data, which moreover was not a right, constituted a “theoretical and illusory” safeguard rather than one that was “practical and effective”. Although the retention of information in the database was limited in time, the storage period was twenty-five years. Given that the prospect of making a successful application for the deletion of data was, to say the least, hypothetical, a period of such length amounted in practice to indefinite storage or, at least, to a norm rather than a maximum period. In conclusion, the Court held that the respondent State had overstepped its margin of appreciation in the matter as the system for retaining the fingerprints of persons suspected of an offence but not convicted, as applied to the applicant in the present case, did not strike a fair balance between the competing public and private interests at stake. Accordingly, the retention of the data amounted to disproportionate interference with the applicant’s right to respect for his private life and could not be said to be necessary in a democratic society. Conclusion : violation (unanimously). Article 41: no claim made in respect of damage. (See S. and Marper v. the United Kingdom [GC], nos.   30562/04 and 30566/04, 4   December 2008, Information Note no.   114)   © 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