Last Updated on November 22, 2019 by LawEuro
Communicated on 19 September 2019
THIRD SECTION
Application no. 3537/15
N.F. against Russia
and 4 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 their spent or lifted convictions from their criminal records
On various dates the applicants were found guilty of criminal offences and were sentenced to terms of imprisonment. One applicant was sentenced to a fine; another was absolved from serving the sentence following the application of an Amnesty Act; and others were given a suspended sentence. The Ministry of the Interior recorded the data relating to their convictions and the sentences imposed in a special database.
After a certain period of time the applicants’ convictions became spent or were lifted by a court.
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 the existence/absence of the fact of a criminal prosecution or the discontinuation of a criminal prosecution”, which contained information on their spent or lifted convictions (the dates of convictions, the criminal offences for which they had been convicted, the sentences imposed, the names of the courts which had convicted them) and other information, such as whether an amnesty had been applied.
Most of the applicants had to provide such records to their employers or recruiters. Some of them were subsequently dismissed 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 their spent or lifted criminal convictions had been unlawful and was no longer necessary, and asked them to delete those data. Some of the applicants asked the ministry to issue new certificates, after having deleted the data relating to their spent or lifted convictions.
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 data relating to 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 of the data relating to their convictions by the ministry and its refusal to delete those data 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;
– those data were stored until the persons concerned reached 80 years of age, regardless of whether the conviction had become spent or had been lifted,andirrespective of the type of offence committed, the type of punishment, the term of imprisonment and the time that had elapsed since the conviction;
– their convictions had already become spent or had been lifted and therefore all the consequences of their convictions had to be annulled, including their criminal record; and
– it was no longer necessary to process the information on their convictions.
The courts dismissed the applicants’ complaints, having found that the Ministry of the Interior had the right to process the data relating to their convictions in accordance with section 13(1) and (3) and section 17(3) and (8) of the Police Act (see “Relevant domestic law” below). The courts also referred to the principles of processing personal data provided for by section 5(7) of the Personal Data Act (see “Relevant domestic law” below).
The courts observed that the time for which personal data relating to convictions could be stored in the police database was not determined in special laws. However, Ministry of the Interior Order no. 612 of 9 July 2007 (see “Relevant domestic law” below) determined that such information would be stored until the individual concerned reached 80 years of age. An equivalent term was also determined by a common order issued by several ministries on 12 February 2014.
Some courts also made reference to the Federal Law on information, information technologies and the protection of information (“the Personal Data Act”) of 27 July 2006, to Decree no. 248 of the President of the Russian Federation of 1 March 2011, to the common ministerial order of 29 December 2005, and to Orders nos. 1121 and 1088 of the Ministry of the Interior of 7 November 2011 and 7 December 2012 respectively (see “Relevant domestic law” below).
The courts further established, in respect of each applicant, that it had still been necessary to store the data relating to their convictions and that the Ministry of the Interior’s refusals to delete those data had not therefore breached the applicants’ rights.
3. Complaints to the Constitutional Court of the Russian Federation
Three applicants (applications nos. 3537/15, 16985/15 and 44941/15) challenged in the Constitutional Court the compatibility with the Constitution of the Police Act (see “Relevant domestic law” below). In particular, they challenged the following provisions:
(a) section 17(3)(2)
The applicants claimed that the term “persons convicted of crimes” used in section 17(3)(2) was not clear and that the police had the right to insert into the database information about individuals convicted of crimes, regardless of whether the conviction had become spent or had been lifted, and regardless of the time that had elapsed since the conviction or after it had become spent or had been lifted.
(b) section 17(8)
The applicants submitted that under section 17(8) 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 on 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.
(i) Application no. 3537/15 lodged on 27 December 2014 by N.F.
The applicant was born on 27 July 1974 and lives in the Pskov Region.
(α) The applicant’s conviction
In 2001 the applicant was found guilty of a criminal offence punishable under Article 113 of the Criminal Code and was sentenced to six months’ imprisonment. She was released in the courtroom following the application of an Amnesty Act.
(β) The applicant’s dismissal from her position in a primary school
In 2011 the local database centre of the Ministry of the Interior provided the Deputy Prosecutor of the Sebezhskiy District, Pskov Region, at his request, with information on the applicant’s conviction in 2001.
On 20 September 2012 the Sebezhskiy District Court (“the District Court”) granted a request lodged by the prosecutor to dismiss the applicant from her position as a school teacher, on the grounds that she had been convicted under Article 113 of the Criminal Code.
On 4 December 2012 the Pskov Regional Court (“the Regional Court”) upheld that judgment.
On 5 December 2012 the applicant was dismissed from her post.
On 24 October 2013 the District Court re-examined the case concerning the applicant’s dismissal following new circumstances, and dismissed the prosecutor’s request.
On 14 January 2014 the Regional Court quashed the judgment of 24 October 2013 and adopted a new judgment ordering the applicant’s dismissal.
(γ) Proceedings against the Ministry of the Interior
On 11 April 2014 the Ministry of the Interior, at the applicant’s request, issued her with an extract from her criminal record. The certificate made reference to her conviction in 2001.
The applicant applied to the Ministry of the Interior with a request to delete from its database the information on her conviction. The ministry refused her request.
On 19 June 2014 the Pskov Town Court of the Pskov Region dismissed a complaint lodged by the applicant against the ministry’s refusal to delete the information on her conviction from its database.
On 26 August 2014 the Pskov Regional Court dismissed an appeal lodged by the applicant against the judgment of 19 June 2014.
On 21 October 2014 a judge of the Pskov Regional Court declined to refer an appeal on points of law lodged by the applicant to the Court of Cassation.
(ii) Application no. 16985/15 lodged on 26 March 2015 by I.D.
The applicant was born on 11 March 1966 and lives in the Republic of Chuvashiya.
In 1996 the Moscow District Court of Cheboksary found the applicant guilty of a criminal offence punishable under Article 206 § 1 of the Criminal Code of the Russian Soviet Socialist Republic and sentenced her to a fine.
On 27 November 2013 the Ministry of the Interior, at the applicant’s request, issued an extract from her criminal record.
The applicant applied to the Ministry of the Interior with a request to delete from its database the information on her conviction. The ministry refused her request.
On 13 October 2014 the Leninskiy District Court of Cheboksary dismissed a complaint lodged by the applicant against the ministry’s refusal to delete the information on her conviction from its database.
On 15 December 2014 the Supreme Court of the Republic of Chuvashiya dismissed an appeal lodged by the applicant against the judgment of 13 October 2014.
On 27 February 2015 a judge of the Supreme Court of the Republic of Chuvashiya refused to refer an appeal on points of law lodged by the applicant to the Court of Cassation.
On 23 June 2015 a judge of the Supreme Court of the Russian Federation refused to refer the applicant’s appeal on points of law to the civil chamber of the Supreme Court.
(iii) Application no. 44941/15 lodged on 28 August 2015 by A.K.
The applicant was born on 5 May 1980 and lives in the Republic of Tatarstan.
On 18 October 2000 the applicant was found guilty of a criminal offence punishable under Article 213 § 3 of the Criminal Code and was sentenced to four years’ imprisonment suspended on probation for three years.
On 24 September 2002 the Naberezhno-Chelninskiy Town Court of the Republic of Tatarstan lifted the applicant’s conviction.
The applicant applied to the Ministry of the Interior for deletion from its database of the information on his conviction. The ministry refused his request.
On 21 January 2015 Vakhitovskiy District Court of Kazan dismissed a complaint lodged by the applicant against the ministry’s refusal to delete the information on his conviction from its database.
On 26 March 2015 the Supreme Court of the Republic of Tatarstan upheld that judgment.
On 31 July 2015 a judge of the Supreme Court of the Republic of Tatarstan refused to refer an appeal on points of law lodged by the applicant to the Court of Cassation.
On 27 November 2015 a judge of the Supreme Court of the Russian Federation refused to refer the applicant’s appeal on points of law to the civil chamber of the Supreme Court.
(iv) Application no. 7965/18 lodged on 30 January 2018 by V.M.
The applicant was born on 6 December 1973 and lives in the Republic of Korea. She was represented before the Court by Mr Yuriy Viktorovich Shevchenko.
In 1997 the applicant was found guilty of a criminal offence in Russia punishable under Article 228 of the Criminal Code and was sentenced to seven years and six months’ imprisonment suspended on probation for three years.
The applicant’s conviction became spent on 25 September 2000.
Since 2001 the applicant has been living in the Republic of Korea.
In 2016 the applicant applied to the Ministry of the Interior for deletion from its database of the information on her conviction. The ministry refused her request.
On 19 December 2016 the Frunzenskiy District Court of Vladivostok dismissed a complaint lodged by the applicant against the ministry’s refusal to delete the information on her conviction from its database.
On 16 March 2017 the Primorskiy Regional Court dismissed an appeal lodged by the applicant against the judgment of 19 December 2016.
On 31 May 2017 a judge of the Primorskiy Regional Court refused to refer an appeal on points of law lodged by the applicant to the Court of Cassation.
On 4 September 2017 a judge of the Supreme Court of the Russian Federation refused to refer the applicant’s appeal on points of law to the civil chamber of the Supreme Court.
(v) Application no. 13977/18 lodged on 9 March 2018 by K.F.
The applicant was born on 18 February 1986 and lives in Samara. He was represented before the Court by Mr Igor Leonidovich Fedotov.
On 16 June 2006 the applicant was found guilty of a criminal offence punishable under Article 116 of the Criminal Code and was sentenced to one year’s imprisonment.
The applicant’s conviction became spent in 2010.
The applicant submits that between 2012 and 2016 prospective employers refused to engage him because of information on his spent conviction which had been obtained by their internal security services from the Ministry of the Interior’s databases. He had difficulties in feeding his family, which had negative consequences on his family life and in 2016 his wife asked for a divorce.
In 2016 the applicant applied to the Ministry of the Interior for deletion from its database of the information on his conviction. The ministry refused his request.
On 10 November 2016 the Promyshlennyy District Court of Samara dismissed a complaint lodged by the applicant against the ministry’s refusal to delete the information on his conviction from its database.
On 17 February 2017 the Samara Regional Court upheld that judgment.
On 15 May 2017 a judge of the Samara Regional Court refused to refer an appeal on points of law lodged by the applicant to the Court of Cassation.
On 12 September 2017 a judge of the Supreme Court of the Russian Federation refused to refer the applicant’s appeal on points of law to the civil chamber of the Supreme Court.
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. Criminal Code of the Russian Federation
Article 86 § 1 of the Criminal Code provides that a person found guilty of a crime shall be deemed to be convicted from the date of the entry into force of the court’s sentence until such time as the conviction becomes spent or is lifted. The conviction is taken into account in the event of re-offending, and when sentencing. It also entails other legal consequences in cases and in accordance with orders provided for by federal laws. Article 86 § 2 provides that an individual who has been absolved from serving a sentence will be deemed not to have been convicted.
Article 86 § 3 provides a list of cases where conviction is deemed to have become spent:
(a) in respect of individuals who have received a suspended sentence – on expiry of the probation period;
(b) in respect of individuals sentenced to punishments which are more lenient than deprivation of liberty – on expiry of a one-year period after the sentence has been served, or the punishment enforced;
(c) in respect of individuals sentenced to deprivation of liberty for crimes of minor or average gravity – on expiry of a period of three years after the sentence has been served;
(d) in respect of individuals sentenced to deprivation of liberty for serious crimes – on expiry of a period of eight years after the sentence has been served;
(e) in respect of individuals sentenced to deprivation of liberty for particularly serious crimes – on expiry of a period of ten years after the sentence has been served.
Article 86 § 5 provides that in cases where an individual’s conduct after having served the sentence is irreproachable and the individual has compensated for the damage caused by the crime, a court may, at the request of that individual, lift his conviction before the expiry of the statutory period for the conviction to become spent.
Article 86 § 6 provides that after the conviction becomes spent or is lifted by the court, all the legal consequences entailed by the conviction will be annulled.
3. 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.
4. 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 2 provides that data concerning “individuals convicted of a criminal offence” will be inserted in databases. Subparagraph 6 provides that information concerning “individuals in respect of whom an Amnesty Act has been applied before the entry into force of the sentence, absolving them from serving a sentence” will also be inserted into 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.
5. 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 decree 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.
6. Relevant orders of the Ministry of the Interior
(a) Order no. 1070 of 29 December 2005 on the centralised registration of crimes
The order approved the rules for the centralised registration of criminal cases and 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
Article 74 of the Rules (addendum to the order) establishes which information should be indicated in the certificate.
(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)
Paragraph 15.1 of the addendum provides that data concerning criminal convictions are stored regardless of whether the conviction has become spent or has been lifted.
Paragraph 15.2 provides that data on criminal convictions are stored until the individuals concerned reach the age of 80.
(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 – Addendum no. 1 to the order.
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 purpose of the processing has 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 27 provides that information on convictions, including spent and lifted convictions, 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 their criminal convictions after they had become spent or had been lifted 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 criminal convictions 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. On which dates were the applicants’ criminal convictions lifted or did they become spent?
2. 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 the applicants’ personal data related to their criminal convictions, and continue processing those data after the applicants’ convictions had become spent or had been lifted by a court?
3. 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 relating to criminal convictions, and, in particular, of data on spent and lifted convictions?
The Government are required to describe, with reference to the applicable provisions of domestic law, the procedures for:
– collection of personal data relating to criminal convictions;
– 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 personal data on criminal convictions sufficiently clear to give the applicants an adequate indication that the data relating to their convictions would be processed after their convictions had become spent or had been lifted and also as to the maximum duration of such processing? Did the term “individuals convicted for committing a crime”, referred to in section 17 of the Police Act, refer to all individuals convicted of a criminal offence, including those whose convictions had become spent or had been lifted? Does the processing of information on convictions constitute a legal consequence of conviction – as referred to in Article 86 of the Code of Criminal Procedure – which should be annulled after the conviction becomes spent or is lifted by a court? What is the maximum period during which information on criminal convictions may be processed?
– Does Russian law provide, for each stage of the processing of data relating to criminal convictions, 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 the 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, whether the conviction is spent or was lifted, 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?
___________
APPENDIX
| No. | Application no. | Case name | Lodged on |
| 1 | 3537/15 | N.F. v. Russia | 27/12/2014 |
| 2 | 16985/15 | I.D. v. Russia | 26/03/2015 |
| 3 | 44941/15 | A.K. v. Russia | 28/08/2015 |
| 4 | 7965/18 | V.M. v. Russia | 30/01/2018 |
| 5 | 13977/18 | K.F. v. Russia | 09/03/2018 |
Leave a Reply