| Applicant name | N.F. AND OTHERS |
| Applicant type | Natural person |
| Number of applicants | 9 |
| Country | Russia |
| Application no. | 3537/15, 16985/15, 27062/15, 44941/15, 46208/15, 19003/16, 7965/18, 13977/18 and 32673/18 |
| Date | 12/09/2023 |
| Judges | Pere Pastor Vilanova, President, Yonko Grozev, Georgios A. Serghides, María Elósegui, Darian Pavli, Ioannis Ktistakis, Andreas Zünd, judges, |
| Institution | Court |
| Type | Judgment |
| Outcome Art. 8 | Violation |
| Reason | Not necessary in a democratic society (prevention crime; protectio of rights) |
| Type of privacy | Informational privacy |
| Keywords | data retention; criminal record |
| Facts of the case | On various dates criminal proceedings were instituted against the applicants. The Ministry of the Interior recorded the personal data relating to the criminal proceedings against the applicants in a special database. After a certain period, the applicants’ convictions became spent or were lifted by a court. On various dates the local database centres of the Ministry delivered to the applicants, at their requests, certificates 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. 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. |
| Analysis | Interestingly, while it sometimes appears that the ECtHR has accepted that any processing of personal data, as defined under the EU’ GDPR, also falls under the material scope of Article 8 ECHR, in this case, the Court makes clear that the processing of personal data only falls under that provision when it affects a person’s private life. Because this case revolves around the processing of criminal data, this was the case, the ECtHR concludes. There was a law and the question of whether it met the quality of law requirements is directly related to the question of necessary in a democratic society. The legitimate aim was the prevention of crime and the protection of the rights of others. With regard to the question of necessity it notes that a substantial amount of data is gathered, that such is done irrespective of the gravity of the offence committed, that the storage time of the data retention, which are classified confidential, have never been published in any official publication and are not accessible to the public and that the domestic courts in one case held that such data should be stored until the subject reached the age of eighty years. The Russian legal system did not allow for an adequate proportionality test on a case by case basis, which is why the ECtHR finds a violation of Article 8 ECHR. Although this finding is understandable, keeping records of criminal convictions seems a legitimate interest. The Court does not specify what exactly is the problem in this case: the duration of the storage itself, the fact that the storage period was not made public, the fact that the Russian legal system did not allow for an individual proportionality test, etc. This makes it difficult to critically engage with this judgement. It seems that if storing data about criminal conduct for a long period of time would be problematic as such, more Member States might run the risk of being in violation of the ECHR. |
| Other Article violation? | No, one of the applicants made undisclosed claims, but those are rejected by the Court |
| Damage awarded | 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 44 § 2 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: (i) EUR 7,500 (seven thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (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; |
| Documents | Judgment |