Last Updated on April 22, 2020 by LawEuro
FIRST SECTION
DECISION
Application no. 17770/10
Ibraima DJALO
against the United Kingdom
The European Court of Human Rights (First Section), sitting on 6 February 2018 as a Committee composed of:
Kristina Pardalos, President,
Pauliine Koskelo,
Tim Eicke, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 7 March 2010,
Having regard to the declaration submitted by the respondent Government on 26 November 2017 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant, MrIbraimaDjalo, is a British national, who was born in 1976 and lives in Salford.
2. The United Kingdom Government (“the Government”) were represented by their Agent, Ms Verity Robson of the Foreign and Commonwealth Office.
3. The applicant complained under Article 8 of the Convention about the about the retention of his photograph, fingerprints and DNA following his arrest on 5 February 2007 on suspicion of one count of sexual activity with a female with a mental disorder, and five counts of sexual assault. He was not charged with the offences of which he was suspected, nor convicted of any other offences.
4. The application was communicated to the Government.
THE LAW
5. The applicant complained about the retention of his photograph, fingerprints and DNA sample and profile. He relied on Article 8 of the Convention.
6. After the failure of attempts to reach a friendly settlement, by a letter of 16 November2017 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
7. The declaration provided as follows:
“Until 1 October 2013 at the latest, the DNA sample was retained by the forensic services provider, the DNA profile was retained on the National DNA Database (the ‘NDNAD’) and the fingerprints were retained on the national fingerprint database (‘IDENT1’), pursuant to the police’s powers under section 64 of the [Police and Criminal Evidence Act 1984] (‘the 1984 Act’). These biometric data were destroyed or deleted by 1 October 2013 at the latest.
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From an unknown date until 14 September 2017, the DNA profile was also held on two databases which were used only for technical testing purposes, known as ‘test sets’.
It is possible that the fingerprints were also held on a test set but, because fingerprints were held on the relevant test set anonymously, it is not known whether this was the case and, in any event, the relevant test set was deleted in its entirety on 8 September 2017.
Until 28 March 2017, MrDjalo’s custody photograph was retained pursuant to the retention policy in force at the time of his arrest, and it continues to be retained under a new policy framework in force since that date.”
8. The declaration went on to explain the legislative changes which were brought into force in England and Wales to execute this Court’s judgment in S. and Marper v.theUnited Kingdom[GC], nos. 30562/04 and 30566/04, ECHR 2008 (for a summary of those provisions see the Communication Report of 13July2017 in Gaughran v.theUnited Kingdom,45245/15). It emphasised that as a result of those changes, biometric data that was held unlawfully under the new legislation including that of the applicant, was destroyed or deleted. Accordingly, the declaration confirmed that:
“All of MrDjalo’s biometric data held by the forensic service provider or on NDNAD or IDENT1 were destroyed or deleted … by 31 October 2013 at the latest.”
9. Underlining that the applicant was suspected but not convicted of a crime, the Government considered his situation was indistinguishable from that of the applicants in S. and Marper v. the United Kingdom (cited above). It went on to say that:
“the Government therefore acknowledge that the retention of MrDjalo’s biometric data by the forensic service provider and on the NDNAD and IDENT1 was pursuant to the same blanket and indiscriminate powers considered by the Court in the S and Marpercase, and therefore that retention must also have constituted a violation of Article 8.”
10. In relation to the applicant’s DNA Profile that was retained in test sets, the declaration underlines that these test sets were purely for research purposes and were not searchable by the police authorities. However, under the new law, an authorisation should have been in place from 31 October 2013 to govern its retention. No such authorisation was in place. Therefore:
“…the Government accept that, from 31October2013 until 14 September 2017, Mr Djalo’s DNA profile was held on the test sets in breach of domestic law. The Government therefore acknowledge that the retention of MrDjalo’s DNA profile on the test sets was not in accordance with the law, and therefore that retention constituted a violation of Article 8.”
11. As the Government could not be certain whether the applicant’s anonymised fingerprints were also held on a test set, and in light of the fact that the test set in question was destroyed on 8September2017, no specific declaration was made in that respect.
12. Concerning the photograph, the Government referred to a ruling of the domestic courts in R(C)v. CommissionerofPolice of the Metropolis [2012] EWHC 1681 (Admin). In that case the High Court found that the policy governing retention of custody photographs for individuals suspected but not convicted of a crime was disproportionate. As a result, a new policy was brought into force on 28March2017. According to the declaration:
“Pursuant to the new policy framework, the Greater Manchester Police reviewed the retention of MrDjalo’s custody photograph on 14 July 2017 having regard to the particular facts of MrDjalo’s individual case. The Greater Manchester Police decided that the continued retention of MrDjalo’s custody photograph is necessary for policing purposes and there is an exceptional reason for retaining it.
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The Government therefore acknowledge that the retention of MrDjalo’s photograph during the period 5February2007 to 27March2017 was pursuant to the same blanket and indiscriminate powers considered by the High Court in the C case and therefore that retention must also constitute a violation of Article 8.”
The Declaration concludes:
“…the Government consider that the acknowledgement and declaration of the violation of Article 8 in MrDjalo’s case, coupled with the measures that the Government has taken to ensure that subsequent retention of biometric data and custody photographs is subject to schemes of retention which are compliant with Article 8, constitutes just satisfaction for MrDjalo.”
13. By a letter of 29 November 2017, the applicant indicated that he was not satisfied with the terms of the unilateral declaration on the ground that his photograph continued to be retained.
14. The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application.”
15. It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
16. To this end, the Court has examined the declarationin the light of the principles emerging from its case-law, in particular the TahsinAcar judgment (Tahsin Acar v.Turkey (preliminary objections) [GC], no. 26307/95, §§ 75-77, ECHR2003-VI; WAZA Sp. z o.o. v.Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v.Poland(dec.), no. 28953/03, 18 September 2007).
The Court has established in a number of cases, including those brought against the United Kingdom, its practice concerning complaints about the violation of 8 concerning the retention of biometric data and photographs (see, for example, S. and Marper v.the United Kingdom, cited above,Goggins and Others v.the United Kingdom(striking out), nos. 30089/04 and 7others, 19July2011; andThomas v.the United Kingdom (dec.) [Committee],no. 24344/08, 25April2017).
It also recalls that the possibility of judicial review offers reasonable prospects of success for the applicant to complain about retention of his photograph under the new policy (see Goggins and Others, cited above, § 55).
Having regard to the nature of the admissions contained in the Government’s declaration, and given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).
In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declaration under Article 8 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Done in English and notified in writing on 1 March 2018.
Renata Degener Kristina Pardalos
Deputy Registrar President
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