Last Updated on November 22, 2019 by LawEuro
Communicated on 19 September 2019
THIRD SECTION
Application no. 27062/15
A.G. against Russia
and 3 other applications
(see list appended)
STATEMENT OF FACTS
The applicants are Russian nationals.
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
1. The applicants’ requests to delete the information on the criminal proceedings against them from their criminal records
On various dates criminal proceedings were instituted against the applicants on suspicion of criminal offences. They were subsequently discontinued on various “non-rehabilitative” grounds (for example, application of an Amnesty Act, or friendly settlement reached between the applicant and the victim).
The Ministry of the Interior recorded the personal data relating to the criminal proceedings against the applicants in a special database.
On various dates the local database centres of the Ministry of the Interior delivered to the applicants, at their request, so-called certificates “on the existence/absence of convictions or existence/absence of the fact of a criminal prosecution or the discontinuation of a criminal prosecution”, which contained information on the criminal proceedings against them.
Most of the applicants had to provide such records to their employers or recruiters. Some of them lost their jobs on account of their criminal record or were denied employment.
The applicants complained to the heads of the local database centres of the Ministry of the Interior that the processing of the data relating to the criminal proceedings against them had been unlawful and was no longer necessary, and asked them to delete the data.
The Ministry of the Interior replied that the certificates had been issued in compliance with its order of 7 November 2011 (see “Relevant domestic law” below). The information on the applicants’ criminal prosecution had been stored in the information databases (“информационныемассивы”) of its local database centres.
2. Court proceedings against the Ministry of the Interior
The applicants brought court proceedings against the local database centres of the Ministry of the Interior. They submitted that the processing by the Ministry of the Interior of information on the criminal proceedings against them which had been discontinued, and its refusal to delete that information, had been unlawful on the following grounds:
– the processing of such data, including its storage and disclosure, had substantially restricted their right to employment;
– the processing of such data and, in particular, the length of its storage, were governed by ministerial orders, and not by a federal law;
– it was no longer necessary to process the information on the criminal proceedings against them as they had been discontinued.
The courts dismissed the applicants’ complaints, having found that the Ministry of the Interior had the right to process the information on their criminal prosecution in accordance with section 13(1) and section 17(3) and (8) of the Police Act and section 10((3) of the Personal Data Act.
The courts observed that the time for which personal data relating to criminal prosecution could be stored in the police database was not determined in special laws. However, Ministry of the Interior Order no. 89 of 12 February 2014 determined that such information would be stored until the individual concerned reached 80 years of age.
The courts also made reference to Decree no. 248 of the President of the Russian Federation of 1 March 2011 on questions relating to the Ministry of the Interior of the Russian Federation and ministerial Orders no. 39 of 29 December 2005 and no. 1121 of 7 November 2011 (see “Relevant domestic law” below).
3. Complaints to the Constitutional Court of the Russian Federation
Two applicants (applications nos. 27062/15 and 46208/15) challenged in the Constitutional Court the compatibility with the Constitution of certain provisions of the Police Act, in particular, section 13(3) and subsections (1), (3), (4) and (8) of section 17. The applicants submitted that under those provisions, personal data contained in the databases had to be destroyed once the aims of processing them had been achieved or once it was no longer necessary to pursue those aims. The applicants contended that the terms “reaching the aim of the processing” or “the loss of necessity to reach the aims of processing” were not clear. Moreover, the provision contained no mechanism for the destruction of personal data, once the purpose of processing them had been achieved.
The applicants also submitted that their lives were affected in so far as they had been either dismissed from their jobs or unable to find employment.
The applicants made reference to the Court’s judgment in the case of M.M. v. the United Kingdom (no. 24029/07, § 187, 13 November 2012) and to the Council of Europe Convention of 1981 for the protection of individuals with regard to automatic processing of personal data (“the Data Protection Convention”).
The Constitutional Court declined to examine the applicants’ complaints on the merits.
One applicant (application no. 19003/16) challenged in the Constitutional Court the compatibility with the Constitution of the Labour Code (Article 65, paragraph 1, subparagraph 7). The Constitutional Court declined to examine the applicant’s complaint on the merits.
(a) Application no. 27062/15 lodged on 14 May 2015 by A.G.
The applicant was born on 23 April 1960 and lives in the Krasnoyarsk region.
In May 1999 criminal proceedings were instituted against the applicant on suspicion of a criminal offence punishable under Article 116 of the Criminal Code (assault without causing injuries).
On 25 June 1999 the local department of the interior discontinued the criminal proceedings against the applicant in accordance with Article 5 § 4 of the old Code of Criminal Procedure (the application of an Amnesty Act – see “Relevant domestic law” below).
On 14 July 2014 the Ministry of the Interior, at the applicant’s request, issued an extract from his criminal record, which showed that in 1999 the criminal proceedings against him had been discontinued following the application of an Amnesty Act.
The applicant applied to the Ministry of the Interior with a request to delete from its database the information on the criminal proceedings which had been discontinued in 1999. The ministry refused his request.
On 28 October 2014 the Tsentralnyy District Court of Krasnoyarsk dismissed a complaint lodged by the applicant against the ministry’s refusal to delete the information on the criminal proceedings against him from its database.
On 14 January 2015 the Krasnoyarskiy Regional Court upheld that judgment.
(b) Application no. 46208/15 lodged on 19 August 2015 by D.C.
The applicant was born on 13 July 1986 and lives in the Kaluga region.
In 2006 criminal proceedings were instituted against the applicant on suspicion of an offence punishable under Article 111 § 3 (a) of the Criminal Code (intentional infliction of serious injuries).
During the examination of the case on 14 March 2007 the prosecutor reclassified the charges against the applicant to battery, an offence punishable under Article 116 § 2 of the Criminal Code, and asked the court to discontinue the proceedings in accordance with Article 25 of the new Code of Criminal Procedure, following a friendly settlement reached by the parties.
On 14 March 2007 the Borovskiy District Court of the Kaluga region agreed with the reclassification of the charges against the applicant. It discontinued the criminal proceedings against him following the friendly settlement reached by the parties, in accordance with Article 20 § 2 and Article 25 of the new Code of Criminal Procedure.
On 9 July 2014 the Ministry of the Interior, at the applicant’s request, issued an extract from his criminal record. It showed that criminal proceedings had been instituted against him in 2006 under Article 111 of the Criminal Code, but that the proceedings had been discontinued in 2007 following the friendly settlement reached by the parties.
The applicant applied to the Ministry of the Interior with a request to delete from its database the information on the criminal proceedings which had been discontinued in 2007. The ministry refused his request.
On 16 January 2015 the Kaluzhskiy District Court of Kaluga dismissed a complaint lodged by the applicant against the ministry’s refusal to delete the information on the criminal proceedings against him from its database.
On 15 April 2015 the Kaluzhskiy Regional Court upheld that judgment.
On 29 July 2015 the President of the Kaluzhskiy Regional Court refused to refer an appeal on points of law lodged by the applicant to the Court of Cassation.
On 19 February 2016 a judge of the Supreme Court of the Russian Federation refused to refer the applicant’s appeal on points of law to the Court of Cassation.
(c) Application no. 19003/16 lodged on 30 March 2016 by B.C.
The applicant was born on 28 December 1976 and lives in Volgograd.
On 14 July 2000 criminal proceedings were instituted against the applicant on suspicion of a number of criminal offences.
On 7 August 2000 those proceedings were discontinued following a material change in circumstances, a ground provided for by Article 6 of the old Code of Criminal Procedure.
On 9 November 2012 the Ministry of the Interior, at the applicant’s request, issued an extract from his criminal record. It showed that criminal proceedings had been instituted against him in July 2000 on suspicion of several criminal offences, and that they had been discontinued in August 2000 following a material change in circumstances.
The applicant applied to the Ministry of the Interior with a request to delete from its database the information on the criminal proceedings which had been discontinued in 2000. The ministry refused his request.
On 14 August 2015 the Dzerzhinskiy District Court of Volgograd dismissed a complaint lodged by the applicant against the Ministry of the Interior’s refusal to delete the information on the criminal proceedings against him from its database.
On 28 October 2015 the Volgograd Regional Court upheld that judgment.
On 25 December 2015 a judge of the Volgograd Regional Court refused to refer an appeal on points of law lodged by the applicant to the Court of Cassation.
On 31 May 2016 a judge of the Supreme Court of the Russian Federation refused to refer the applicant’s appeal on points of law to the Court of Cassation.
(d) Application no. 32673/18 lodged on 27 June 2018 by I.K.
The applicant was born on 25 August 1981 and lives in the Krasnodar region.
On 6 January 2003 criminal proceedings were instituted against the applicant on suspicion of a criminal offence.
On 27 February 2003 the criminal proceedings against the applicant were discontinued in accordance with Article 28 of the new Code of Criminal Procedure (following a formal apology from the applicant).
On 14 February 2017 the applicant applied to the Ministry of the Interior with a request to delete from its database information on the criminal proceedings which had been discontinued in 2003.
On 3 March 2017 the ministry refused his request.
On 31 March 2017 the Maykopskiy Town Court of the Republic of Adygeya dismissed a complaint lodged by the applicant against the ministry’s refusal to delete the information on the criminal proceedings against him from its database.
On 27 June 2017 the Supreme Court of the Republic of Adygeya upheld that judgment.
On 24 July 2017 a judge of the Supreme Court of the Republic of Adygeya refused to refer an appeal on points of law lodged by the applicant to the Court of Cassation.
On 31 May 2018 a judge of the Supreme Court of the Russian Federation refused to refer the applicant’s appeal on points of law to the Court of Cassation.
B. Relevant domestic law and practice
1. Constitution of the Russian Federation
Article 24 of the Constitution provides that collecting, keeping, using and disseminating information about a person’s private life is not permitted without his or her consent.
2. Federal law “On Personal Data Act of 27 July 2006
Section 5 lays down the principles of the processing of personal data. In particular, the processing of personal data should come to an end once specific and lawful aims, to be defined in advance, have been achieved. No processing of personal data must take place where it is incompatible with the aims of processing.
The storage of personal data should be carried out in a form which allows identification of the subject of the data for a period no longer than necessary for the achievement of the aims of processing, provided that the storage term is not defined by a federal law or a contract to which the subject of the data is a party, beneficiary or guarantor. Personal data subject to processing should be destroyed or anonymised once the aims pursued have been achieved or where it is no longer necessary to pursue those aims, unless a federal law provides otherwise.
Section 10(3) provides that the processing of personal data relating to convictions may be carried out by State or municipal authorities within the limits of their powers, but also by other individuals in cases and in accordance with orders established by law.
Section 10(4) provides that the processing of personal data relating to convictions should be stopped immediately if the reasons which led to the processing of such data have been eliminated, unless a federal law provides otherwise.
3. Police Act of 7 February 2011
Section 17(1) provides that the police have the right to process individuals’ personal data as necessary for the fulfilment of their obligations, and subsequently to insert the received information into databases. The updating of databases is carried out in accordance with the requirements provided for in the legislation of the Russian Federation.
Section 17(3) provides a list of data to be inserted into databases. In particular, subparagraph 4 provides that data concerning “an individual in respect of whom a decision to terminate the criminal proceedings was taken because the criminal prosecution was time-barred, following a friendly settlement reached by the parties, following the application of an Amnesty Act or following a formal apology given by that individual” must be included in the databases.
Section 17(4) provides that the police must protect data contained in databases from illegal or accidental access, destruction, copying, dissemination or other unlawful actions.
Under section 17(5), information contained in databases may be provided to State authorities or their officials only in cases defined by federal law. It may be provided to law-enforcement authorities of foreign States and to international police organisations in accordance with international treaties to which the Russian Federation is a party.
Section 17(8) provides that personal data contained in databases must be destroyed once the aims pursued by their processing have been achieved or in cases where it is no longer necessary to pursue those aims.
4. Decree no. 248 of the President of the Russian Federation of 1 March 2011 on questions relating to the Ministry of the Interior of the Russian Federation
The order approved the rules on the functioning (“the Statute”) of the Ministry of the Interior, which remained in force until 21 December 2016.
Article 13 § 8 of the Statute provided that the Ministry of the Interior had the right to establish and run in accordance with the legislation of the Russian Federation, federal databases and, in particular, databases of criminal convictions.
5. Relevant orders of the Ministry of the Interior
(a) Order no. 1070 of 29 December 2005 on the centralised registration of crimes
(b) Order no. 612 of 9 July 2007 (not published in a generally accessible official publication)
(c) Order no. 1121 of 7 November 2011 approving the rules on the issuing of certificates on the existence/absence of a conviction and/or of the fact of a criminal prosecution or the termination of a criminal prosecution
(d) Order no. 89 of 12 February 2014 approving the guidelines for running and using centralised operational reference databases, criminal records and investigation databases generated by the agencies of the Ministry of the Interior (not published in a generally accessible official publication).
Addendum no. 1 to the order concerning the rules on data collection, and running and using databases of individuals subjected to criminal prosecution (not published in a generally accessible official publication)
(e) Order no. 949 of 21 December 2017 on certain measures aimed at guaranteeing the enforcement by the Ministry of the Interior of obligations provided for by the Personal Data Act of 27 July 2006 (Federal Law No. 152-ФЗ)
The order approved the rules on the processing of personal data within the system of the Ministry of the Interior.
Article 1 of the Rules states that the Rules establish procedures aimed at finding and preventing breaches of domestic law in the sphere of personal data. They also establish the categories of person whose personal data are processed, the purpose of processing the data, the time-limits for processing and storage of data, and the procedure for the destruction of data once the aims pursued by the processing have been achieved or in other cases provided for by law.
Article 9 provides a list of categories of personal data which may be processed. Paragraph 28 provides that information on the fact of criminal prosecution and on the termination of criminal prosecution may be processed.
Article 11 sets out a list of categories of person whose personal data may be processed. Paragraph 10 provides that data on persons convicted of a crime may be processed.
Chapter IV of the Rules is entitled “Time-limits for the processing and storage of personal data, procedure for their destruction once the aims of processing have been achieved or in other cases provided for by law”.
Article 12 provides that the time-limits for the processing and storage of personal data within the system of the Ministry of the Interior are defined in accordance with the legislation of the Russian Federation and statutory instruments of the Ministry of the Interior. If such time-limits are not specified by the legislation and statutory instruments of the Ministry of the Interior, personal data may not be processed and stored for longer than required in order to achieve the aims pursued by the processing and storage.
Article 15 provides that personal data must be destroyed once the aims of processing have been achieved or if there is no longer any need to pursue those aims.
C. Relevant Council of Europe texts
For a summary of relevant texts, see M.M. v. the United Kingdom (no. 24029/07, §§ 122-42, 13 November 2012).
COMPLAINTS
The applicants complain, under Article 8 of the Convention, that the continued processing and, in particular, the storage by the Ministry of the Interior of the personal data relating to the discontinued criminal proceedings against them are in breach of their right to respect for their private life. They contend that the domestic law governing the processing of personal data concerning the discontinued criminal proceedings is incompatible with the Convention since it does not provide for appropriate safeguards against arbitrary interference with their right to respect for private life.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicants’ right to respect for their private life within the meaning of Article 8 § 1 of the Convention? In particular, did the Ministry of the Interior process data relating to the criminal proceedings against the applicants which had been discontinued, and continue processing them?
2. If so, was that interference in accordance with the law (see M.M. v. the United Kingdom, no. 24029/07, 13 November 2012)? In particular:
(a) Which provisions of domestic law govern the processing (collection, storage, use, disclosure, destruction …) of personal data concerning criminal proceedings which were discontinued?
The Government are required to describe, with reference to the applicable provisions of domestic law, the procedures for:
– collection of data on criminal proceedings which were discontinued;
– storage, including the duration of storage;
– the use to which those data can be put;
– the circumstances in which those data may be disclosed;
The Government are required to provide an exhaustive list of authorities/officials/persons who may access the data on spent or lifted convictions or request the disclosure of those data.
– the procedure for destruction of those data.
(b) Is the domestic law compatible with the rule of law, accessible and foreseeable as required by Article 8 of the Convention (see M.M. v.the United Kingdom, cited above §§ 191-207) and was the interference necessary in terms of Article 8 § 2 (see Gardel v. France, no. 16428/05, ECHR 2009)?
– Were all those provisions – in particular, Ministry of the Interior Orders nos. 612 and 89 of 9 July 2007 and 12 February 2014 respectively – published in a generally accessible official publication?
– Were the terms of the law governing the processing of data relating to criminal convictions sufficiently clear to give the applicants an adequate indication that the data concerning the criminal proceedings against them would be processed after those proceedings had been terminated and also as to the maximum duration of such processing? What is the maximum period during which information on criminal proceedings which were terminated may be processed?
– Does Russian law provide, for each stage of the processing of data relating to criminal proceedings which were terminated, appropriate and adequate safeguards against arbitrary and disproportionate interference with the right to respect for private life (see M.M., cited above, §§ 195-207)? In particular:
– What is the scope and application of recording system?
– What is the duration of the data processing?
– What are the procedures to be followed for collecting, storing, accessing, examining, using, communicating, disclosing and destroying the recorded data? In particular, is there:
· a procedure for notifying the individual concerned of the recording of data, of operations performed on data, and in particular, of disclosures, and of the existing guarantees against abuse (duration of storage, review …)?
· a mechanism for independent and effective review of the continued processing of data and, if so, what are the criteria for such review (the nature of the offence, the time elapsed since the offence was committed, the individual’s age …)?
· a mechanism for independent and effective review of the necessity to disclose data and, if so, what are the criteria for such review (scope of disclosure, relevance of data for the purpose of the disclosure sought, nature of the offence, time elapsed since the offence was committed)?
· a procedure open to individuals concerned to apply for review of the accuracy of data, and for their correction and destruction?
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APPENDIX
| No. | Application no. | Case name | Lodged on |
| 1 | 27062/15 | A.G. v. Russia | 14/05/2015 |
| 2 | 46208/15 | D.C. v. Russia | 19/08/2015 |
| 3 | 19003/16 | B.C. v. Russia | 30/03/2016 |
| 4 | 32673/18 | I.K. v. Russia | 27/06/2018 |
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