{"id":21112,"date":"2023-09-12T10:21:18","date_gmt":"2023-09-12T10:21:18","guid":{"rendered":"https:\/\/laweuro.com\/?p=21112"},"modified":"2023-09-12T11:17:05","modified_gmt":"2023-09-12T11:17:05","slug":"case-of-n-f-and-others-v-russia-3537-15-and-8-others","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=21112","title":{"rendered":"CASE OF N.F. AND OTHERS v. RUSSIA – 3537\/15 and 8 others"},"content":{"rendered":"

The case concerns the processing by the Ministry of the Interior of the applicants\u2019 personal data in respect of discontinued criminal proceedings or criminal convictions that have been lifted or became spent. In conclusion, the Court finds that the processing of the applicants\u2019 data relating to criminal convictions which have become spent or which have been lifted by a court and of data relating to criminal proceedings which have been discontinued on \u201cnon-rehabilitative grounds\u201d failed to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, such processing constituted a disproportionate interference with the applicants\u2019 right to respect for their private life and cannot be regarded as \u201cnecessary in a democratic society\u201d.<\/span><\/p>\n

\n

THIRD SECTION
\nCASE OF N.F. AND OTHERS v. RUSSIA<\/strong>
\n(Applications nos. 3537\/15 and 8 others \u2013 see appended list)<\/em>
\nJUDGMENT<\/p>\n

Art 8 \u2022 Private life \u2022 Disproportionate character of processing of applicants\u2019 personal data relating to discontinued criminal proceedings on \u201cnon-rehabilitative grounds\u201d and criminal convictions lifted by a court or spent \u2022 Scope and application of data storage system extensive \u2022 Data automatically collected and stored in databases once an individual was subjected to criminal prosecution and, in relation to criminal convictions, irrespective of nature and gravity of offence committed \u2022 Absence of sufficient guarantees against abuse and of possibility of review \u2022 Failure of domestic legal framework to make a distinction as to the purpose and other important functionalities of retention and processing of such data \u2022 Absence of real possibility to conduct proportionality analysis with respect to possible access by third parties \u2022 Continued processing of data intrusive \u2022 Failure to strike fair balance between competing interests at stake \u2022 Margin of appreciation overstepped<\/p>\n

STRASBOURG
\n12 September 2023<\/p>\n

This judgment will become final in the circumstances set out in Article 44 \u00a7 2 of the Convention. It may be subject to editorial revision.<\/p>\n

In the case of N.F. and Others v. Russia,<\/strong><\/p>\n

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
\nPere Pastor Vilanova, President,
\nYonko Grozev,
\nGeorgios A. Serghides,
\nMar\u00eda El\u00f3segui,
\nDarian Pavli,
\nIoannis Ktistakis,
\nAndreas Z\u00fcnd, judges,
\nand Olga Chernishova, Deputy Section Registrar,<\/p>\n

Having regard to:<\/p>\n

the applications (see the list of applications in Appendix I) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by nine Russian nationals (\u201cthe applicants\u201d), on the various dates indicated in Appendix I;<\/p>\n

the decision to give notice to the Russian Government (\u201cthe Government\u201d) of the complaints under Article 8 of the Convention concerning the processing, by the Ministry of the Interior, of the personal data in respect of the applicants relating to either discontinued criminal proceedings against the applicants or criminal convictions that have been either lifted or became spent and to declare inadmissible the remainder of the applications;<\/p>\n

the decision not to have the applicants\u2019 names disclosed;<\/p>\n

the decision of the President of the Section to appoint one of the elected judges of the Court to sit as an ad hoc judge, applying by analogy Rule 29 \u00a7\u00a02 of the Rules of Court (see, Kutayev v. Russia, no.\u00a017912\/15, \u00a7\u00a7 5-8, 24\u00a0January 2023);<\/p>\n

the parties\u2019 observations;<\/p>\n

Having deliberated in private on 21 March and 11 July 2023,<\/p>\n

Delivers the following judgment, which was adopted on the last\u2011mentioned date:<\/p>\n

INTRODUCTION<\/strong><\/p>\n

1. The case concerns the processing by the Ministry of the Interior of the applicants\u2019 personal data in respect of discontinued criminal proceedings or criminal convictions that have been lifted or became spent.<\/p>\n

THE FACTS<\/strong><\/p>\n

2. The names of the applicants\u2019 representatives are listed in Appendix I.<\/p>\n

3. The Government were represented by Mr M. Galperin, the former Representative of the Russian Federation to the European Court of Human Rights, and subsequently by Mr M. Vinogradov, his successor in that office.<\/p>\n

4. The facts of the case may be summarised as follows.<\/p>\n

I. Criminal proceedings against the applicants<\/strong><\/p>\n

5. On various dates criminal proceedings were instituted against the applicants; those proceedings either were subsequently discontinued on \u201cnon\u2011rehabilitative grounds\u201d (for example, through the application of an Amnesty Act or friendly settlement reached between the parties) or resulted in criminal convictions (see Appendix I for further details).<\/p>\n

6. The Ministry of the Interior (hereinafter, \u201cthe Ministry\u201d) recorded the personal data relating to the criminal proceedings against the applicants in a special database.<\/p>\n

7. After a certain period, the applicants\u2019 convictions became spent or were lifted by a court.<\/p>\n

8. On various dates the local database centres of the Ministry delivered to the applicants, at their requests, certificates \u201con the existence\/absence of convictions, the existence\/absence of a criminal prosecution or the discontinuation of a criminal prosecution\u201d, which contained information regarding the criminal proceedings against them, such as whether an amnesty had been granted, the dates of the respective convictions, the criminal offences for which they had been suspected or convicted, the sentences imposed and the names of the courts that had convicted them.<\/p>\n

9. Most of the applicants needed their respective certificates for presentation to employment recruiters or to their current or potential employers. Some of them allegedly were subsequently dismissed on account of their criminal record or were denied employment.<\/p>\n

10. The applicants complained to the heads of the database centres of the Ministry that the processing, including the storage, of data relating to discontinued criminal proceedings and spent and lifted convictions was unlawful and unnecessary and asked them to delete such data. Some of the applicants asked the Ministry to delete such data and to issue them with new certificates.<\/p>\n

11. The Ministry replied that the certificates had been issued in compliance with its order of 7 November 2011 (see \u201cRelevant domestic law\u201d below, paragraph 25) and that the data relating to the applicants\u2019 criminal prosecution was stored in the information databases, in accordance with law.<\/p>\n

II. proceedings against the Ministry of the Interior<\/p>\n

12. Each of the applicants brought court proceedings against the Ministry. They submitted, in substance, that the processing by the Ministry of data relating to the discontinued criminal proceedings or to their spent or lifted criminal convictions, as well as its refusal to delete that information, had been unlawful or unnecessary for the following reasons:<\/p>\n

– the processing of such data substantially restricted their right to employment;<\/p>\n

– the processing of such data and, in particular, the duration of its processing, was governed by ministerial orders, and not by federal law;<\/p>\n

– data relating to past criminal convictions were to be stored until the persons concerned reached eighty years of age, regardless of whether the conviction in question had become spent or had been lifted, and irrespective of the type of offence committed, the type of punishment imposed, the term of imprisonment imposed and the time that had elapsed since the conviction;<\/p>\n

– it was no longer necessary to process information relating to their convictions or prosecution.<\/p>\n

13. The courts dismissed the applicants\u2019 complaints, having essentially found in each case that under section 13(1) and (3) and section 17(3) and (8) of the Police Act and section 10 (3) of the Personal Data Act (see \u201cRelevant domestic law\u201d below, paragraphs 21 and 22) the Ministry had the right to process the data relating to the criminal proceedings against the applicants and their convictions.<\/p>\n

14. The courts observed that the length of time during which personal data relating to criminal prosecutions and convictions could be stored in the police database was not determined by any legislative act. However, the Ministry\u2019s Order no. 612 of 9 July 2007 and Order no. 89 of 12 February 2014 (see \u201cRelevant domestic law\u201d below, paragraph 25) provided that such information should be stored until the individual concerned reached eighty years of age.<\/p>\n

15. The domestic courts also referred to Decree no. 248 of the President of the Russian Federation of 1 March 2011, and to Orders nos. 1070 and 1121 issued by the Ministry of the Interior on 29 December 2005 and 7 November 2011 respectively (see \u201cRelevant domestic law\u201d below, paragraph 25).<\/p>\n

16. With respect to the applicants\u2019 convictions, the courts further established that it remained necessary to store the respective data and that the Ministry\u2019s refusal to delete those data had not therefore breached the applicants\u2019 rights.<\/p>\n

RELEVANT LEGAL FRAMEWORK<\/strong><\/p>\n

I. RELEVANT DOMESTIC LAW<\/strong><\/p>\n

A. Criminal Code of the Russian Federation (FZ-63 of 13 June 1996)<\/strong><\/p>\n

17. Article 86 provides that a person found guilty of a crime shall be deemed to have been convicted from the date of the entry into force of the court\u2019s sentence until such time as the conviction becomes spent or is lifted. The conviction is, essentially, taken into consideration in the event of the individual in question reoffending, and when he or she is sentenced. An individual who has been exempted from serving a sentence will be deemed not to have been convicted.<\/p>\n

18. Article 86 \u00a7 3 sets out when a conviction becomes spent:<\/p>\n

(a) in the case of a suspended sentence \u2013 upon the expiry of the probation period;<\/p>\n

(b) in the case of a sanction not involving the deprivation of liberty \u2013 upon the expiry of one year following the completion of the sentence or the enforcement of the punishment;<\/p>\n

(c) in the case of conviction for crimes of minor or medium gravity \u2013 upon the expiry of three years following the completion of the sentence;<\/p>\n

(d) in the case of being sentenced to the deprivation of liberty for serious crimes \u2013 upon the expiry of eight years following the completion of the sentence;<\/p>\n

(e) in the case of being sentenced to the deprivation of liberty for particularly serious crimes \u2013 upon the expiry of ten years following the completion of the sentence.<\/p>\n

19. Article 86 \u00a7 5 provides that in the event that an individual has displayed good behaviour after completing a sentence and has afforded compensation for the damage caused by the crime in question, a court may, at that individual\u2019s request, lift the conviction before the expiry of the statutory period after which that conviction would otherwise have become spent.<\/p>\n

20. Article 86 \u00a7 6 provides that after a conviction becomes spent or is lifted by a court, all the legal consequences arising from that conviction will be annulled.<\/p>\n

B. Personal Data Act (FZ-152 of 27 July 2006)<\/strong><\/p>\n

21. The processing of personal data should come to an end once specific and lawful aims (to be defined in advance) have been achieved or where it is no longer necessary to pursue those aims. The processing of personal data relating to convictions may be carried out not only by State or municipal authorities acting within the limits of their powers, but also by other individuals, where so established by law (sections 5 and 10(3)).<\/p>\n

C. Police Act (FZ-3 of 7 February 2011)<\/strong><\/p>\n

22. The police have the right to process individuals\u2019 personal data as and when necessary, and subsequently to store such data in databases. Such data includes information about \u201cindividuals convicted of a criminal offence\u201d, information about \u201cindividuals in respect of whom an amnesty act has been applied before the entry into force of the sentence \u2013 exempting them from serving a sentence\u201d and \u201cindividuals in respect of whom a decision to terminate criminal proceedings was taken because the prosecution was time\u2011barred, following a friendly settlement reached by the parties, following an application of an Amnesty Act or following the giving of a formal apology by that individual\u201d. Personal data 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 (sections 13 (1) and (3), 17 (1), (3) and (8)).<\/p>\n

23. Police must protect all data in their possession from illegal or accidental access, destruction, copying, dissemination or other unlawful actions. Information contained in databases may be provided to State authorities or officials only in cases defined by federal law (section 17 (4) and\u00a0(5)).<\/p>\n

D. Decree no. 248 of the President of the Russian Federation of 1\u00a0March 2011<\/strong><\/p>\n

24. The decree approved the rules on the functioning of the Ministry of the Interior that remained in force until 21 December 2016. Article 13 \u00a7 8 of those rules provided that the Ministry had the right to establish and run, in accordance with the relevant legislation, federal databases (including databases of criminal convictions).<\/p>\n

E. Relevant orders of the Ministry of the Interior<\/strong><\/p>\n

25. Between 2005 and 2017 the Ministry adopted a number of orders regulating the processing of personal data: Order no. 1070 of 29 December 2005 on the centralised registration of crimes, Order no. 612 of 9 July 2007 (not published in a generally accessible official publication), Order no. 1121 of 7 November 2011 approving the rules on the issuing of certificates attesting to the existence\/absence of a conviction and\/or of a criminal prosecution or the termination of a criminal prosecution, Order no. 89 of 12\u00a0February 2014 approving the guidelines regarding the maintenance and use of centralised operational reference databases, criminal records and investigation databases (none of which are published in a generally accessible official publication) and Order no.\u00a0949 of 21 December 2017 on certain measures aimed at guaranteeing the enforcement by the Ministry of obligations provided by the Personal Data Act of 27 July 2006.<\/p>\n

II. RELEVANT COUNCIL OF EUROPE INSTRUMENTS<\/strong><\/p>\n

26. The Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No. 108, hereinafter \u201cthe Data Protection Convention\u201d) of 28 January 1981 entered into force in respect of the Russian Federation on 1 September 2013 and is currently being updated. The relevant parts of the Data Protection Convention read as follows:<\/p>\n

Article 2 \u2013 Definitions<\/p>\n

\u201cFor the purposes of this Convention:<\/p>\n

\u2018personal data\u2019 means any information relating to an identified or identifiable individual (\u2018data subject\u2019);<\/p>\n

…\u201d<\/p>\n

Article 5 \u2013 Quality of data<\/p>\n

\u201cPersonal data undergoing automatic processing shall be …<\/p>\n

(b) stored for specified and legitimate purposes and not used in a way incompatible with those purposes;<\/p>\n

(c) adequate, relevant and not excessive in relation to the purposes for which they are stored;<\/p>\n

…<\/p>\n

(e) preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored.\u201d<\/p>\n

Article 6 \u2013 Special categories of data<\/p>\n

\u201cPersonal data revealing racial origin, political opinions or religious or other beliefs, as well as personal data concerning health or sexual life, may not be processed automatically unless domestic law provides appropriate safeguards. The same shall apply to personal data relating to criminal convictions.\u201d<\/p>\n

27. Recommendation No. R (84) 10 of the Committee of Ministers on the criminal record and rehabilitation of convicted persons (adopted on 21\u00a0June 1984) notes in its preamble that any use of criminal-record data outside the context of a criminal trial may jeopardise a convicted person\u2019s chances of social reintegration and should therefore be restricted \u201cto the utmost\u201d. The Recommendation invited member States to review their legislation with a view to introducing a number of measures, where necessary \u2013 including provisions limiting the communication of criminal record information and provisions governing the rehabilitation of offenders – that would imply the prohibition of any reference to the convictions of a rehabilitated person except on compelling grounds provided for by national law.<\/p>\n

28. Recommendation No. R (87) 15 of the Committee of Ministers regulating the use of personal data in the police sector (adopted on 17\u00a0September 1987) provides, inter alia, as follows:<\/p>\n

Principle 2 \u2013 Collection of data<\/p>\n

\u201c2.1. The collection of personal data for police purposes should be limited to such as is necessary for the prevention of a real danger or the suppression of a specific criminal offence. Any exception to this provision should be the subject of specific national legislation.<\/p>\n

…<\/p>\n

Principle 3 \u2013 Storage of data<\/p>\n

3.1. As far as possible, the storage of personal data for police purposes should be limited to accurate data and to such data as are necessary to allow police bodies to perform their lawful tasks within the framework of national law and their obligations arising from international law.<\/p>\n

…<\/p>\n

Principle 7 \u2013 Length of storage and updating of data<\/p>\n

7.1. Measures should be taken so that personal data kept for police purposes are deleted if they are no longer necessary for the purposes for which they were stored.<\/p>\n

For this purpose, consideration shall in particular be given to the following criteria: the need to retain data in the light of the conclusion of an inquiry into a particular case; a final judicial decision, in particular an acquittal; rehabilitation; spent convictions; amnesties; the age of the data subject, particular categories of data.\u201d<\/p>\n

THE LAW<\/strong><\/p>\n

I. JOINDER OF THE APPLICATIONS<\/strong><\/p>\n

29. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.<\/p>\n

II. JURISDICTION<\/strong><\/p>\n

30. The Court observes that the applicants complained about the processing of their personal data by the Ministry of the Interior. The Court decides that it has jurisdiction to examine the present applications in so far as the facts giving rise to the alleged violations of the Convention occurred prior to 16 September 2022 \u2013 the date on which the Russian Federation ceased to be a party to the Convention (see Fedotova and Others v. Russia [GC], nos.\u00a040792\/10 and 2 others, \u00a7\u00a7\u00a068\u201173, 17 January 2023).<\/p>\n

III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION<\/strong><\/p>\n

31. The applicants complained that the processing by the Ministry of their personal data concerning discontinued criminal proceedings or lifted or spent criminal convictions had been in breach of their right to respect for their private life, as provided by Article 8 of the Convention, which reads as follows:<\/p>\n

\u201c1. Everyone has the right to respect for his private and family life, his home and his correspondence.<\/p>\n

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.\u201d<\/p>\n

A. Admissibility<\/strong><\/p>\n

32. The Government did not raise any objection as to the admissibility of the applications.<\/p>\n

33. The Court notes that the right to the protection of one\u2019s personal data is guaranteed by the right to respect for private life under Article 8. As the Court has previously held, the protection of personal data is of fundamental importance to a person\u2019s enjoyment of his or her right to respect for private and family life, as guaranteed by Article 8 of the Convention.\u00a0Article 8 thus provides for the right to a form of informational self-determination, allowing individuals to rely on their right to privacy as regards data which, albeit neutral, are collected, processed and disseminated collectively and in such a form or manner that their Article 8 rights may be engaged. In determining whether personal information\u00a0retained\u00a0by the authorities involves any private-life aspects,\u00a0the Court\u00a0will\u00a0have due regard to the specific context in which the information at issue has been recorded and retained, the nature of the records, the way in which such records are used and\u00a0processed and the results that may be obtained (see L.B. and Hungary [GC], no. 36345\/16, \u00a7\u00a0103, 9 March 2023).<\/p>\n

34. In the light of the Court\u2019s case-law in respect of Article 8 of the Convention, it follows that in the instant case, data which were processed by the Ministry (and which related to discontinued criminal proceedings and criminal convictions that have become spent or have been lifted by a court) concerned the applicants\u2019 private life and therefore attracted the protection of Article 8 of the Convention (see also Gardel v. France, no.\u00a016428\/05, \u00a7 58, ECHR 2009, and Brunet v. France, no. 21010\/10, \u00a7 31, 18 September 2014).<\/p>\n

35. The Court further notes that the applications are neither manifestly ill\u2011founded nor inadmissible on any other grounds listed in Article\u00a035 of the Convention. They must therefore be declared admissible.<\/p>\n

B. Merits<\/strong><\/p>\n

1. The parties\u2019 submissions<\/strong><\/p>\n

36. The applicants submitted that the processing by the Ministry of the part of their personal data relating to discontinued criminal proceedings or to criminal convictions that had become spent or had been lifted by a court had amounted to an interference with their right to respect for private life. That interference had not been justified under Article 8 \u00a7 2 of the Convention. In particular, the domestic law governing the processing of those data did not provide appropriate safeguards against abuse of power; ministerial orders setting the procedure and time-limits for the storage of such data were classified as confidential and were not accessible to the public. Furthermore, the interference had not been \u201cnecessary in a democratic society\u201d for the following reasons: the extensive scope of the data storage system, which did not draw any distinction based on the nature or degree of seriousness of an offence leading to a conviction, or on whether the data subject had been convicted or discharged after being detained on suspicion of committing an offence; the excessively lengthy period for which data were retained (data were stored until the subject in question reached the age of eighty years); and the absence of an effective review process by which to assess the necessity of the continued storage of the data.<\/p>\n

37. The Government submitted that the processing of the applicants\u2019 personal data had been in accordance with law. They confirmed that the Ministry\u2019s orders setting down the procedure for the collection and storage of personal data and the time-limits for their processing were classified as confidential and were not published in any official publication. They further indicated that the processing of data was aimed at prevention, detection, and investigation of crimes.<\/p>\n

2. The Court\u2019s assessment<\/strong><\/p>\n

(a) Whether there was an \u201cinterference\u201d<\/p>\n

38. The Court reiterates that the processing by a public authority of personal data concerning criminal proceedings that were subsequently either discontinued or resulted in criminal convictions will constitute an interference with the data subject\u2019s right to respect for his or her private life (see, for instance, the above-cited cases of Gardel, \u00a7 58, and Brunet, \u00a7 31). The Court finds no reason to hold otherwise in the present case. It will accordingly examine whether the interference was justified in terms of Article\u00a08 \u00a7 2 of the Convention \u2013 that is, whether it was in accordance with the law, pursued a legitimate aim and was \u201cnecessary in a democratic society\u201d.<\/p>\n

(b) Whether the interference was justified<\/p>\n

(i) Whether the interference was \u201cin accordance with law\u201d<\/p>\n

39. To be justified under Article 8 \u00a7 2 of the Convention, the interference must be in accordance with the law. The wording \u201cin accordance with the law\u201d requires the impugned measure to have some basis in domestic law. The law must be accessible to the person concerned and foreseeable as to its effects (see S. and Marper v. the United Kingdom [GC], nos. 30562\/04 and 30566\/04, \u00a7 103, ECHR 2008).<\/p>\n

40. With regard to the processing by the authorities of criminal-record data, the Court has indicated that it is essential to have clear, detailed rules governing the scope and application of such measures, together with minimum safeguards concerning, inter alia, duration, storage, usage, access of third parties, procedures for preserving the integrity and confidentiality of data and procedures for their destruction \u2013 thus providing sufficient guarantees against the risk of abuse and arbitrariness (see M.M. v. the United Kingdom, no. 24029\/07, \u00a7 195, 13 November 2012).<\/p>\n

41. The provisions and principles set out by the Data Protection Convention and by Recommendations Nos. R (84) 10 and R (87) 15 of the Committee of Ministers are of some importance (see \u201cRelevant Council of Europe Instruments\u201d above, paragraphs 26 – 28).<\/p>\n

42. According to the domestic authorities and the Government, the processing of the applicants\u2019 data had a legal basis in the Personal Data Act, the Police Act and Ministry orders no. 612 of 9 July 2007 and no. 89 of 12\u00a0February 2014. Under the Police Act, the police have the right to process an individual\u2019s personal data to the extent necessary for the fulfilment of their obligations (see \u201cRelevant domestic law\u201d above, paragraphs 21 and 22 above). The Court therefore accepts that the processing of the applicants\u2019 data had a legal basis in domestic law.<\/p>\n

43. In so far as the applicants alleged that the domestic law did not meet the \u201cquality of law\u201d requirement (since the Ministry orders were classified as confidential), the Court notes that in the present case this issue is closely related to the broader issue of whether the interference was necessary in a democratic society and that it would therefore be more appropriate to examine it from the perspective of proportionality rather than of lawfulness (see S. and Marper, cited above, \u00a7 99).<\/p>\n

(ii) Whether the interference pursued a legitimate aim<\/p>\n

44. The Court has previously held that in order to protect their population, the national authorities can legitimately hold relevant records as an effective means of helping to punish and prevent certain offences (see B.B. v.\u00a0France, no. 5335\/06, \u00a7 62, 17 December 2009). Therefore, the processing of the applicants\u2019 data pursued the legitimate aim of the prevention of crime and the protection of the rights of others.<\/p>\n

(iii) Whether the interference was \u201cnecessary in a democratic society\u201d<\/p>\n

(1) General principles<\/p>\n

45. An interference will be considered \u201cnecessary in a democratic society\u201d in order to achieve a legitimate aim if it answers a \u201cpressing social need\u201d and, in particular,\u00a0if it is proportionate to the legitimate aim pursued and\u00a0if the reasons adduced by the national\u00a0authorities to justify it are \u201crelevant and sufficient\u201d.\u00a0While it is for the national authorities to make the initial assessment\u00a0in\u00a0all\u00a0these respects,\u00a0the final evaluation of\u00a0whether the interference is necessary\u00a0remains subject to review by the Court for conformity with the requirements of the Convention (see\u00a0S. and Marper, cited above, \u00a7 101). The protection of personal data is of fundamental importance to a person\u2019s enjoyment of his or her right to respect for his private life, as guaranteed by Article 8 of the Convention. The domestic law must therefore afford appropriate safeguards to prevent any such use of personal data as may be inconsistent with the guarantees of this Article (see P.N. v. Germany, no.\u00a074440\/17, \u00a7 70, 11 June 2020, and\u00a0S. and Marper, cited above, \u00a7 103). The need for such safeguards is all the greater where the protection of personal data undergoing automatic processing is concerned, not least when such data are used for police purposes. The domestic law should in particular ensure that such data are relevant and not excessive in relation to the purposes for which they are stored, and are preserved in a form that permits the identification of the data subjects for no longer than is required for the purpose for which those data are stored. The domestic law must also afford adequate guarantees that retained personal data shall be efficiently protected from misuse and abuse (see P.N. v. Germany, cited above, \u00a7 71, with further references).<\/p>\n

46. The Court has considered a series of cases relating to the retention and processing of personal data of individuals convicted of criminal offences and of individuals who had been suspected of committing criminal offences, but who had ultimately been discharged. In its assessment of the proportionality of the interference in those cases the Court has had regard to the following elements: the nature and gravity of the offences in question; the level of the actual interference with the right to respect for private life; the scope and application of the data storage system; the data retention period; the possibility of review; safeguards against abuse; and guarantees aimed at regulating access by third parties and protecting data integrity and confidentiality (see, for instance, S. and Marper, cited above, \u00a7\u00a7 118-24; Gardel, cited above, \u00a7\u00a7 65-70; and Gaughran v. the United Kingdom, no.\u00a045245\/15, \u00a7\u00a7 94 and 96, 13 February 2020, with further references).<\/p>\n

47. A margin of appreciation must be left to the relevant national authorities in such an assessment. The breadth of this margin varies and depends on a number of factors, including the nature of the Convention right in issue, its importance for the individual, the nature of the interference and the object pursued by the interference. The margin will tend to be narrower where the right at stake is crucial to the individual\u2019s effective enjoyment of intimate or key rights. Where a particularly important facet of an individual\u2019s existence or identity is at stake, the margin allowed to the State will be restricted. Where, however, there is no consensus within the member States of the Council of Europe \u2013 either as to the relative importance of the interest at stake or as to how best to protect it \u2013 the margin will be wider (see S. and Marper, cited above, \u00a7102).<\/p>\n

(2) Application of those principles to the present case<\/p>\n

48. The Court notes from the outset that the applicants did not contest the initial collection of data relating to the criminal proceedings against them or to their convictions. They contested the processing of these data after the proceedings against them had been discontinued on \u201cnon-rehabilitative grounds\u201d or after their convictions had become spent or had been lifted by a court.<\/p>\n

49. Regarding the scope and application of the data storage system, the Court observes that the recording system in place covers not only criminal convictions but also situations where an individual has been subjected to criminal prosecution and the criminal proceedings were subsequently discontinued on \u201cnon-rehabilitative grounds\u201d. Thus, a significant amount of data is collected and stored in databases once an individual is subjected to criminal prosecution. Moreover, data relating to criminal convictions are collected and stored, irrespective of the nature and gravity of the offence committed. It was not contested by the Government that both the collection and initial storage of those data are intended to be automatic, and that their further storage is also automatic. Therefore, the scope and application of this system are extensive.<\/p>\n

50. The Court further observes that the procedure and the time-limits for the storage and processing of data are governed by Ministry orders no. 612 of 9 July 2007 and no. 89 of 12 February 2014, which are classified confidential, have never been published in any official publication and are not accessible to the public (see paragraphs 15 and 25 above). It was deemed by the domestic courts (which referred to these orders) that such data should be stored until the subject in question reached the age of eighty years. Under the Personal Data Act and the Police Act, personal data must be destroyed once the aims pursued by their processing have been achieved or in the event that it is no longer necessary to pursue those aims. However, since the relevant Ministry orders are classified as confidential, the discretion afforded to the Ministry in the exercise of this power is not counterbalanced by sufficient guarantees against abuse, and the possibility of any review would appear to be almost hypothetical (see, mutatis mutandis, Gaughran, cited above, \u00a7 94; also contrast with P.N. v. Germany, cited above, \u00a7\u00a7 85-88). The available legal framework failed to make any distinction based on the purpose of the processing of the data, such as providing information in the context of employment, and, as a result, at no point the proportionality and the existence of relevant and sufficient reasons for the interference with the applicants\u2019 right to respect for their private life were assessed.<\/p>\n

51. In so far as the guarantees aimed at regulating access by third parties and protecting data integrity and confidentiality are concerned, the Court observes that under the Police Act, police\u00a0must protect data in their care from illegal or accidental access, destruction, copying and dissemination. Such information may be provided to State authorities or officials only in cases defined by federal law (see \u201cRelevant domestic law\u201d above, paragraph 23). However, as noted above, the available regulations make no distinction as to the purpose and other important functionalities of retention and processing of such data, and thus give no real possibility to conduct a proportionality analysis with respect to possible access by third parties, in line with the requirements of Article 8.<\/p>\n

52. Lastly, the Court acknowledges that the level of interference with the applicants\u2019 right to a private life may differ according to whether the applicant was convicted or whether the charges were dropped.<\/p>\n

53. The continued processing of data is particularly intrusive for applicants who have not been convicted of any criminal offences. The Court has already expressed its concerns about the risk of stigmatisation, which stems from the fact that such persons, who are entitled to presumption of innocence, have in the past been treated in the same way as convicted persons (see S. and Marper, cited above, \u00a7 122).<\/p>\n

54. In so far as convicted persons are concerned, the level of interference with their private life will also be intrusive after their convictions have become spent or are lifted by a court; this is particularly so in respect of their social reintegration (see Recommendation No. R (84) 10 of the Committee of Ministers on the criminal record and rehabilitation of convicted persons, \u201cRelevant Council of Europe Instruments\u201d above, paragraph 27).<\/p>\n

55. In conclusion, the Court finds that the processing of the applicants\u2019 data relating to criminal convictions which have become spent or which have been lifted by a court and of data relating to criminal proceedings which have been discontinued on \u201cnon-rehabilitative grounds\u201d failed to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, such processing constituted a disproportionate interference with the applicants\u2019 right to respect for their private life and cannot be regarded as \u201cnecessary in a democratic society\u201d.<\/p>\n

56. There has therefore been a violation of Article 8 of the Convention in the present case.<\/p>\n

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION<\/p>\n

57. The Court has examined the other complaints submitted by the applicant in application no. 3537\/15. Having regard to all the material in its possession and in so far as these complaints fall within the Court\u2019s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article\u00a035 \u00a7\u00a7 3 (a) and 4 of the Convention.<\/p>\n

V. APPLICATION OF ARTICLE\u00a041 OF THE CONVENTION<\/p>\n

58. Article\u00a041 of the Convention provides:<\/p>\n

\u201cIf the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.\u201d<\/p>\n

A. Damage<\/strong><\/p>\n

59. The applicants claimed, in respect of non-pecuniary damage, the amounts indicated in Appendix II. The ninth applicant (application no.\u00a032673\/18) did not submit any claims in respect of just satisfaction.<\/p>\n

60. The Government contested those claims.<\/p>\n

61. Having regard to the documents in its possession and to its case-law, the Court awards 7,500 euros (EUR) to each applicant (except for the ninth applicant) in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicants, and dismisses the remainder of their claims.<\/p>\n

B. Costs and expenses<\/strong><\/p>\n

62. The applicants, except for the ninth applicant, claimed, in respect of costs and expenses incurred before the domestic courts and the Court, the amounts indicated in Appendix II.<\/p>\n

63. The Government contested those claims.<\/p>\n

64. According to the Court\u2019s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and to the above-noted criteria, the Court considers it reasonable to award EUR 1,800 to each applicant, except for the ninth applicant, in respect of costs and expenses under all heads, plus any tax that may be chargeable to the applicants.<\/p>\n

C. Default interest<\/strong><\/p>\n

65. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.<\/p>\n

FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n

1. Decides to join the applications;<\/p>\n

2. Holds that it has jurisdiction to deal with the applicants\u2019 complaints in so far as they relate to facts that took place before 16\u00a0September 2022;<\/p>\n

3. Declares the complaints under Article 8 of the Convention about the processing by the Ministry of the Interior of the applicants\u2019 personal data concerning discontinued criminal proceedings or lifted or spent criminal convictions admissible and the remainder of the applications inadmissible;<\/p>\n

4. Holds that there has been a violation of Article 8 of the Convention;<\/p>\n

5. Holds<\/p>\n

(a) that the respondent State is to pay each applicant, except for the ninth applicant, within three months from the date on which the judgment becomes final, in accordance with Article\u00a044\u00a0\u00a7\u00a02 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:<\/p>\n

(i) EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n

(ii) EUR 1,800 (one thousand eight hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses;<\/p>\n

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;<\/p>\n

6. Dismisses the remainder of the applicants\u2019 claim for just satisfaction.<\/p>\n

Done in English, and notified in writing on 12 September 2023, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n

Olga Chernishova \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 Pere Pastor Vilanova
\nDeputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 President<\/p>\n

__________<\/p>\n

APPENDIX<\/strong><\/p>\n

APPENDIX I: LIST OF APPLICATIONS AND DOMESTIC PROCEEDINGS<\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n
No.<\/strong><\/td>\nApplication no.<\/strong><\/p>\n

Date of introduction <\/strong><\/td>\n

Case name<\/strong><\/td>\nRepresentative\u2019s name and location<\/strong><\/td>\nCriminal proceedings against the applicants<\/strong>\u00a0<\/strong><\/td>\nProceedings against the Ministry of the Interior<\/strong><\/td>\n<\/tr>\n<\/thead>\n
1.<\/td>\n3537\/15<\/p>\n

27\/12\/2014<\/td>\n

N.F. v. Russia<\/td>\nPimonov<\/p>\n

Vladimir Aleksandrovich<\/p>\n

Tver<\/td>\n

In 2001 the applicant was convicted under Article 113 of the Criminal Code.<\/td>\n26\/08\/2014, Pskov Regional Court<\/td>\n<\/tr>\n
2.<\/td>\n16985\/15<\/p>\n

26\/03\/2015<\/td>\n

I.D. v. Russia<\/td>\nPimonov<\/p>\n

Vladimir Aleksandrovich<\/p>\n

Tver<\/p>\n

Pashinin<\/p>\n

Dmitriy Sergeyevich<\/p>\n

Krasnodar Region<\/td>\n

In 1996 the applicant was convicted under Article 206 \u00a7\u00a01 of the Criminal Code of the Russian Soviet Socialist Republic.<\/td>\n23\/06\/2015, Supreme Court of the Russian Federation<\/td>\n<\/tr>\n
3.<\/td>\n27062\/15<\/p>\n

14\/05\/2015<\/td>\n

A.G. v. Russia<\/td>\nPimonov<\/p>\n

Vladimir Aleksandrovich<\/p>\n

Tver<\/p>\n

Pashinin<\/p>\n

Dmitriy Sergeyevich<\/p>\n

Krasnodar Region<\/td>\n

In 1999 criminal proceedings were instituted against the applicant on suspicion of the applicant having committed a criminal offence punishable under Article\u00a0116 of the Criminal Code. In June 1999, in accordance with Article 5 \u00a7 4 of the old Code of Criminal Procedure, the Department of the Interior discontinued the criminal proceedings against the applicant (the application of an Amnesty Act).<\/td>\n14\/01\/2015,Krasnoyarsk Regional Court<\/td>\n<\/tr>\n
4.<\/td>\n44941\/15<\/p>\n

28\/08\/2015<\/td>\n

A.K. v. Russia<\/td>\nPimonov<\/p>\n

Vladimir Aleksandrovich<\/p>\n

Tver<\/p>\n

Pashinin<\/p>\n

Dmitriy Sergeyevich<\/p>\n

Krasnodar Region<\/td>\n

In 2000 the applicant was convicted under Article\u00a0213 \u00a7\u00a03 of the Criminal Code. In 2002 the Naberezhno\u2011Chelninskiy Town Court of the Republic of Tatarstan lifted the applicant\u2019s conviction.<\/td>\n27\/11\/2015, Supreme Court of the Russian Federation<\/td>\n<\/tr>\n
5.<\/td>\n46208\/15<\/p>\n

19\/08\/2015<\/p>\n

 <\/td>\n

D.C. v. Russia<\/td>\nPimonov<\/p>\n

Vladimir Aleksandrovich<\/p>\n

Tver<\/td>\n

In 2006 criminal proceedings were instituted against the applicant on suspicion of the applicant having committed a criminal offence punishable under Article 111 \u00a7 3 (a) of the Criminal Code. In 2007 the Borovskiy District Court of the Kaluga Region discontinued those proceedings following a friendly settlement reached by the parties.<\/td>\n19\/02\/2016, Supreme Court of the Russian Federation<\/td>\n<\/tr>\n
6.<\/td>\n19003\/16<\/p>\n

30\/03\/2016<\/td>\n

B.C. v. Russia<\/td>\nPimonov<\/p>\n

Vladimir Aleksandrovich<\/p>\n

Tver<\/p>\n

Pashinin<\/p>\n

Dmitriy Sergeyevich<\/p>\n

Krasnodar Region<\/td>\n

In 2000 criminal proceedings were instituted against the applicant on suspicion of the applicant having committed several criminal offences. In August 2000 these proceedings were discontinued following a material change in circumstances (Article 6 of the old Code of Criminal Procedure).<\/td>\n31\/05\/2016, Supreme Court of the Russian Federation<\/td>\n<\/tr>\n
7.<\/td>\n7965\/18<\/p>\n

30\/01\/2018<\/td>\n

V.M. v. Russia<\/td>\nShevchenko<\/p>\n

Yuriy Viktorovich<\/p>\n

Kkasnodar<\/td>\n

In 1997, the applicant was convicted under Article\u00a0228 of the Criminal Code. In 2000 the applicant\u2019s conviction became spent.<\/td>\n04\/09\/2017, Supreme Court of the Russian Federation<\/td>\n<\/tr>\n
8.<\/td>\n13977\/18<\/p>\n

09\/03\/2018<\/td>\n

K.F. v. Russia<\/td>\nFedotov<\/p>\n

Igor Leonidovich<\/p>\n

Moscow<\/p>\n

Stakhiyeva<\/p>\n

Lyudmila Vladimirovna Moscow<\/td>\n

In 2006 the applicant was convicted under Article\u00a0116 of the Criminal Code. The applicant\u2019s conviction became spent in 2010.<\/td>\n12\/09\/2017, Supreme Court of the Russian Federation<\/td>\n<\/tr>\n
9.<\/td>\n32673\/18<\/p>\n

27\/06\/2018<\/td>\n

I.K. v. Russia<\/td>\nAkhmineyeva<\/p>\n

Yelena Vasilyevna Maykop, Republic of Adygeya<\/td>\n

In January 2003 criminal proceedings were instituted against the applicant on suspicion of the applicant having committed a criminal offence. In February 2003 these criminal proceedings were discontinued under Article 28 of the new Code of Criminal Procedure (after the applicant had made a formal apology).<\/td>\n31\/05\/2018, Supreme Court of the Russian Federation<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

APPENDIX II: CLAIMS UNDER ARTICLE 41 OF THE CONVENTION<\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
No.<\/strong><\/td>\nApplication no.<\/strong>\u00a0<\/strong><\/td>\nCase name<\/strong><\/td>\nApplicants\u2019 claims for just satisfaction<\/strong><\/p>\n

(Article 41 of the Convention)<\/strong><\/td>\n<\/tr>\n<\/thead>\n

Non-pecuniary damage<\/em><\/strong><\/td>\nCosts and expenses incurred in domestic proceedings and before the Court<\/em><\/strong><\/td>\n<\/tr>\n
1.<\/td>\n3537\/15<\/td>\nN.F. v. Russia<\/td>\nEUR 47,000<\/td>\nEUR 3,326<\/td>\n<\/tr>\n
2.<\/td>\n16985\/15<\/td>\nI.D. v. Russia<\/td>\nEUR 45,000<\/td>\nEUR 3,326<\/td>\n<\/tr>\n
3.<\/td>\n27062\/15<\/td>\nA.G. v. Russia<\/td>\nEUR 45,000<\/td>\nEUR 3,323<\/td>\n<\/tr>\n
4.<\/td>\n44941\/15<\/td>\nA.K. v. Russia<\/td>\nEUR 46,000<\/td>\nEUR 3,326<\/td>\n<\/tr>\n
5.<\/td>\n46208\/15<\/td>\nD.C. v. Russia<\/td>\nEUR 45,000<\/td>\nEUR 3,326<\/td>\n<\/tr>\n
6.<\/td>\n19003\/16<\/td>\nB.C. v. Russia<\/td>\nEUR 42,000<\/td>\nEUR 3,341<\/td>\n<\/tr>\n
7.<\/td>\n7965\/18<\/td>\nV.M. v. Russia<\/td>\nEUR 30,000<\/td>\nRUB 150,000<\/td>\n<\/tr>\n
8.<\/td>\n13977\/18<\/td>\nK.F. v. Russia<\/td>\nEUR 100,000<\/td>\nRUB 152,000<\/td>\n<\/tr>\n
9.<\/td>\n32673\/18<\/td>\nI.K. v. Russia<\/td>\nNo claims submitted<\/td>\nNo claims submitted<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

CASE OF N.F. AND OTHERS v. RUSSIA<\/p>\n