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The protection of personal data in the context of law enforcement: recent case law of the European Court of Human Rights

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Abstract

The article discusses recent judgments of the European Court of Human Rights on the collection of personal data for preventing, detecting or investigating criminal offences. The article delves into three national frameworks permitting the police to process, for a period or indefinitely, several categories of data in respect of persons who were suspected of the offences of varying gravity and were (not) convicted of them. It transpires from the case law that the States’ margin of appreciation (i) was narrowed for indefinite processing of a convicted person’s DNA profile, (ii) was not overstepped on account of processing – for several years – a non-convicted person’s less sensitive data, where the decision-making was based on that person’s previous criminal convictions and where the law contained adequate safeguards.

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Notes

  1. In P.N. v. Germany the decision to collect the applicant’s personal data was, however, enforced after the exhaustion of various domestic remedies.

  2. Dragan Petrović v. Serbia, no. 75229/10, 14 April 2020.

  3. National Turkish Union Kungyun v. Bulgaria, no. 4776/08, § 40, 8 June 2017; P.T. v. the Republic of Moldova, no. 1122/12, § 29, 26 May 2020; and Ayoub and Others v. France, nos. 77400/14 and 2 others, § 105, 8 October 2020.

  4. S., V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, 22 October 2018, and Karastelev and Others v. Russia, no. 16435/10, § 85, 6 October 2020.

  5. Van der Heijden v. the Netherlands [GC], no. 42857/05, § 54, 3 April 2012, and Klaus Müller v. Germany, no. 24173/18, § 62, 19 November 2020.

  6. Naït-Liman v. Switzerland [GC], no. 51357/07, § 175, 15 March 2018.

  7. See also P.N. discussed below for the approach under German law relating to the likelihood of usefulness of the collected data (other than DNA profiles) vis-à-vis a risk of reoffending, which was established on the basis of the data subject’s criminal history.

  8. Achour v. France [GC], no. 67335/01, § 44, ECHR 2006-IV.

  9. The decision to collect the applicant’s personal data was enforced over five years later, after the exhaustion of administrative and judicial remedies.

  10. Ivashchenko v. Russia, no. 61064/10, §§ 73-75, 13 February 2018.

  11. Gardel v. France, no. 16428/05, ECHR 2009; Aycaguer v. France, no. 8806/12, 22 June 2017; and Timofeyev and Postupkin v. Russia, nos. 45431/14 and 22769/15, 19 January 2021 [not final as of 15 March 2021].

  12. S.M. v. Croatia [GC], no. 60561/14, §§ 308-20, 25 June 2020.

  13. For instance, “formalities, conditions, restrictions” and, in certain circumstances, “penalties” under Art. 10 § 2 ECHR, Wingrove v. the United Kingdom, 25 November 1996, §§ 48-49, Reports of Judgments and Decisions 1996-V, and Perinçek v. Switzerland [GC], no. 27510/08, §§ 205-07, ECHR 2015 (extracts).

  14. Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data 1981 (ETS no. 108) as amended in 2018; Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data [at http://data.europa.eu/eli/dir/2016/680/2016-05-04].

  15. See supra note 4, and Clooth v. Belgium, 12 December 1991, § 40, Series A no. 225; Selçuk v. Turkey, no. 21768/02, § 34, 10 January 2006.

  16. Allen v. the United Kingdom [GC], no. 25424/09, §§ 103-4, ECHR 2013, and Mihalache v. Romania [GC], no. 54012/10, §§ 94-98, 8 July 2019.

  17. Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018.

  18. X and Others v. Bulgaria [GC], no. 22457/16, § 209, 2 February 2021; L.B. v. Hungary, no. 36345/16, 12 January 2021 [not final as of 15 March 2021].

  19. Declaration by the Council of Europe Committee of Ministers on the 40th anniversary of Convention 108 – Safeguarding the right to data protection in the digital environment, 20 January 2021.

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  1. 67075, Strasbourg Cedex, France

    Kirill Belogubets

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  1. Kirill Belogubets
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Belogubets, K. The protection of personal data in the context of law enforcement: recent case law of the European Court of Human Rights. ERA Forum 22, 231–243 (2021). https://doi.org/10.1007/s12027-021-00663-9

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